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RECONSTRUCTION. 



CLAIMS OF THE INHABITANTS OF THE STATES ENGAGED 
IN THE REBELLION TO RESTORATION OF POLITI- 
CAL RIGHTS AND PRIVILEGES UNDER 
THE CONSTITUTION. 



By CHAELES G. LORING. 



BOSTON: 

LITTLE, BROWN, AND COMPANY. 
1866. 



J4^ 

/ 



RECONSTRUCTION. 



CLAIMS OF THE INHABITANTS OF THE STATES ENGAGED 
IN THE KEBELLION TO EESTOEATION OF POLITI- 
CAL EIGHTS AND PEIVILEGES UNDEE 
THE CONSTITUTION. 



V^ 



Br CHAELE8 '.. LORING. 



BOSTON: 

LITTLE, BROWN, AND COMPANY. 

1866. 






CAMBRIDGE: 

PRESS OF JOHN WILSON AND SON. 






U 



CONTENl^S. 



PART FIRST. 
CHAPTER I. 

PAGr.. 

State Eights — Preliminary History of 1 



CHAPTER II. 

The Constitution — Formation of, and Individual and State 
Rights and Duties under it 18 



CHAPTER III. 

States under the Constitution — Rights of Representation 
IN Congress — Conditions of — Effects of State Rebel- 
lion 21 



CHAPTER IV. 

Powers and Duties of General Government in Relation to 
the States in Rebellion, and when left by the Rebel- 
lion without Organized Ciovernments under the Consti- 
tution, and to Restoration of their Political Privileges 
under it. — Rights Consequent upon War 40 



CHAPTER V. 

Political Rights and Privileges of Rebel States Forfeited 
AND Lost. — Restoration must be by Act of Government. — 
Law of Self-preservation 53 



iv CONTENTS. 



TART SECOND. 



CHAPTER I. 

I'aoe. 
RkPLY to TlIKORIES AND ARGUMENTS ADDUCED IN SUPPORT OF 

THE President's Policy, —Aleeged Destruction of States 
BY niPosiNG Conditions of Restoration 69 



CHAPTER II. 

Asserted Constitutional Limits to Powers of Congress. — 
Theory that the People of the late Rebel States are 
entitled to complete immediate restoration 81 



CHAPTER HI. 

Right of Govern:ment as Conqueror to dictate Terms of 
Peace 91 



CHAPTER TV. 

Asserted Powers of the President as the Executive Head 
OF THE Government, and as Commander-in-Chief, to de- 
cide UPON the Rights of the Rebel States to Immediate 
Restoration 109 



RECONSTRUCTION. 



PAET FIEST. 



CHAPTER I. 

STATE RIGHTS — PRELIMINAKY HISTORY OF. 

The question of the day with the people of the 
United States — and none of graver moment ever agi- 
tated the pubHc mind — is that concerning the claims 
of the inhabitants of the several States, recently in 
open rebellion against the national Government, to be 
re-admitted to the exercise of the personal and corpo- 
rate political powers and franchises which they enjoyed 
under the Constitution before they made war upon 
the Union in order to accomplish its destruction. 

That, by reason of that rebellion and its suppression, 
those who were parties to it forfeited their rights, as 
individual citizens, to property, liberty, and life, of 
which they could at any time be deprived by due 
process of law, and to which they could be restored 
only by the pardon of the Government, no one who 
does not justify the rebellion denies. The only con- 
troversy is, whether citizens, thus under the ban of 



Z RECONSTRUCTION. 

the law, became, upon the laying-down of their arms 
and profession of submission to the national Govern- 
ment, at once restored to their former rights, as 
inhabitants of their respective States, to immediate 
participation in the councils of the nation and to im- 
mediate agency in the administration of the national 
Government. 

The practical issue may be thus stated : whether 
it is competent for the national Government, as now 
administered, to impose upon the inhabitants of the 
several States lately in open rebellion against it, such 
terms and conditions of re-admission to the exercise 
of their former political powers, in the adminis- 
tration of the national sovereignty, as it may judge 
to be essential for its future security ; or whether, 
having laid down their arms and professed a readi- 
ness to obey the laws, those inhabitants are entitled 
to an immediate recognition of those powers as 
matter of right, and to be permitted at once to re- 
assume the exercise of them in the councils of the 
nation. 

In such a discussion, it is necessary that we have a 
clear and definite understanding of the meaning of 
the word " State," as used in the Constitution, and as 
it should be used in any argument concerning it. 
There is a great deal of vague impression and loose 
talk about the States of the Union as being sover- 
eign, free, and independent; affording shelter for 
much sopliistry and declamation, tending to obscure a 



STATE RIGHTS. 6 

subject which, above all others of the day, demands 
careful analysis and calm reasoning. 

The simple definition of a State, politically speak- 
ing, is a people inhabiting a definite territory, and 
possessing an organized government to which they 
owe obedience ; and this definition applies exactly to 
the several States of the JJnion. But there are vari- 
ous kinds of such States. 

Some are possessed of absolute sovereignty, both 
internal and external, having not only entire control 
over the municipal relations and affairs of their sub- 
jects, but also unlimited power over their external 
relations to other nations. These constitute and are 
universally recognized as individual nations, or mem- 
bers of the family of nations. 

There are others, which, existing as independent 
communities and possessing supreme authority inter- 
nally over their subjects, have nevertheless no sepa- 
rate national sovereignty, but are united with other 
States by a common league or compact, by which 
their external or national sovereignty is committed to 
a central authority, representing them unitedly as one 
nation; they separately neither claiming, nor being 
recognized, to be distinct members of the family of 
nations. 

Such States cannot be denominated sovereign, free, 
and independent States in any general or seemingly 
appropriate use of those terms, — not being so in the 
most important elements of State sovereignty, free- 



4 RECONSTRUCTION. 

dom, and independence ; namely, those of national 
power and relationship to other nations. 

In States of the first-named class, rebellion against 
the national sovereignty, in whatever form, is treason 
in every individual engaged in it, and punishable 
accordingly. 

In those of the second, the rebellion of any one 
State against the central authority does not render 
any of its citizens guilty of treason against it, nor 
make him personally punishable for that crime or 
otherwise. It is simply the violation or breach of 
the compact by the State to which its subjects owe 
exclusive allegiance ; and the only redress for the 
other parties is by war against the State, to compel 
the fulfilment of its obligations, or to obtain redress 
for the breach of them ; and, if they succeed in the 
conflict, the State becomes a conquered territory, over 
which the victors have all the rights of war, — includ- 
ing, of course, those to prescribe conditions on which 
the subdued State shall be re-admitted to the league, 
or may thereafter exercise any internal or external 
sovereignty. 

It was to this last-named class that the inhabitants 
of the rebel States claimed that they belonged ; alle- 
ging that they w^re sovereign, free, and independent 
States, united by the Constitution as by a compact or 
league only, from which they had the right to secede, 
as States, at pleasure, or for justifiable cause, — they 
being the exclusive judges of the existence of any. 



STATE RIGHTS. 5 

They claimed that they owed personal allegiance to 
their respective States, and not to the United States ; 
and that, in the resistance by their States of the 
authority of the Government of the United States, 
they, as individuals, were not rebels or traitors, but 
persons acting in obedience to their allegiance to 
those States ; and which, as such, were alone liable, if 
the league or compact had been unjustly violated by 
such resistance. And this, it is generally understood, 
is to be one of the principal grounds of defence of 
Jefferson Davis, if not the only one upon the merits, 
should he ever be put upon trial for treason. 

If this position be maintainable, it is difficult to 
perceive on what ground the rebel States can deny 
the authority of the Government, as the victor in 
the contest, to dictate the terms of peace, and the 
terms upon which those States shall be re-admitted 
to their former privileges, and to hold them in sub- 
jection as conquered States during its discretion. 

Upon their own theory, therefore, and that still 
asserted by them as boldly as ever to be the only true 
one, there could be no question of the right of the 
Government to prescribe any terms of re-admission 
which it should think just and expedient. 

But, in truth, the inhabitants of no one of these 
United States ever had political existence as a sov- 
ereign, free, and independent State, possessing any 
external or international sovereignty ; or ever had any 
distinct separate nationality. 



6 RECONSTRUCTION. 

The inhabitants of them were always, from the be- 
ginning, the people, or portions of the people, of one 
empire, which alone maintained and exercised inter- 
national sovereignty, and upon whose protection and 
supreme authority, as such, they relied. 

In short, the inhabitants of them have always been 
substantially, as under the Constitution they now are, 
onepeoi^le. 

Before the Revolution, and during its continuance 
up to the Declaration of Independence, they were 
inhabitants of colonies or provinces of Great Britain, 
claiming all their powers of internal government 
under her charters or commissions, and contending 
with her only for immunity from alleged violations of 
them. They made no claim to any sovereignty, inter- 
nal or external, not directly granted by or derived 
from her, or belonging to them as her subjects. 

They were in all respects integral portions of the 
British empire, and so portions ohly of one people. 
Every inhabitant of each colony had the entire and 
perfect rights of British citizenship in every other, 
and of carrying on trade and dwelling in it, under 
the laws and regulations of the empire, unobstructed 
and unrestricted by colonial legislation. 

They carried on the war of the Revolution for some 
time under the title of the United Colonies, and for 
the declared purpose of a redress of grievances only, 
and with no avowed view of establishing any national 
independence. 



STATE RIGHTS. 7 

The fii'st Congress, which assembled in 1T74, 
adopted the significant title, "The delegates aj^j^ointed 
hy the good people of these colonies;" thus emphati- 
cally declaring their union as one people, struggling 
in a common cause. They asserted, as great constitu- 
tional rights co7nmon to all, the liberties and immuni- 
ties of the common law of England, and declared 
themselves as united for the common defence of those 
rights. 

And thus was the incipient, and soon to become 
the irrevocable step taken to constitute themselves the 
citizens of a new empire or nation. 

The delegates to the second Congress, in 1775, were 
principally chosen, not by the State legislatures, as 
representatives of the States, but by conventions of 
the people of the several colonies, as representing 
them ; although, in some instances, they were chosen 
by the popular branch of the legislature, the choice 
being afterwards ratified by such conventions. 

Soon after its assembling, and before its second ses- 
sion in September, actual war had commenced in 
Massachusetts, and was imminent in other colonies ; 
and the Congress immediately proceeded " to put the 
country into a state of defence," as one common 
country. It assumed and exercised control over the 
military operations of all the colonies ; created a 
continental army; appointed AVashington command- 
er-m-chief " o/" ^/le continental forces,'' and, in a letter 
accompanying his commission, charged him to make 



8 RECONSTRUCTION. 

it his especial care " that the liberties of America re- 
ceive no detriment." It also provided" a continental 
currency ; directed reprisals upon the ships and mer- 
chandise of Great Britain ; established a treasury 
department, general post-office ; and regulated the 
relations with the Indian tribes. 

In short, the inhabitants of the colonies, before the 
Declaration of Independence, had substantially estab- 
lished a national Government in the name and with 
the general consent and approbation of the people, 
and with all the principal attributes of a nation, ex- 
cepting that of international sovereignty, which they 
had not yet claimed. The struggle was as yet in 
defence of their violated rights as citizens of Great 
Britain, and carried on under the title of " The 
United Colonies ; " thus still recognizing that re- 
lationship. 

And it was not till after thus uniting themselves 
as one people, engaged in a common cause, that they, 
in conformity with the recommendation of the Con- 
gress, proceeded in their respective jurisdictions to 
make provisions for local governments for the man- 
agement of their domestic concerns, which their sepa- 
ration from the mother Government and the exigencies 
of the times made necessary. So that the formation 
of a national Government, revolutionary indeed and 
with limited internal powers, but none the less na- 
tional, acting as the agent, and in the name and with 
the consent, of the inhabitants of the whole territory 



STATE RIGHTS. \) 

embraced within the limits of the colonies, had been 
established by the union in one body of delegates 
representing them, and was in actual operation before 
the adoption of the local governments, called State 
governments, as they have since existed ; and had 
itself recommended their formation as necessary 
means of accomplishing the purposes of its creation, 
— very significant facts, surely, in illustration of the 
true relations of the States to the General Govern- 
ment in their subsequent history. 

By the Declaration of Independence in 1776, made 
"in the name and behalf q/" the good ijeople of these 
colonies," it was enacted that they were " and of right 
ought to be free and independent States ; that they 
are absolved from all allegiance to the British Crown, 
and that all political connection between them and 
the State of Great Britain is and ought to be dis- 
solved ; " and that thek national title thereafter should 
be that of the " United States of America," — by 
which title they have ever since been universally 
recognized. 

By these proceedings, the inhabitants of all the 
colonies, acting as one people, threw off then' allegi- 
ance to the British Crown, and claimed to become an 
independent sovereign nation, entitled to all the rights 
and attributes of external and internal sovereignty in 
regard to all international relations. 

They did not assert any pretension of becoming 
severally independent States, entitled to any such 



10 RECOKSTRUCTION. 

sovereignty, in their relation to foreign nations. 
They claimed no membership as individual States in 
the family of nations ; nor did they declare any inde- 
pendence of each other in any relations with them ; 
but asserted their right to be accounted and dealt with 
as one sovereign people or nation, composed of the 
inhabitants of all the States ; and as such, and only as 
such, have they ever since been recognized in all the 
treaties and international relations of peace or war into 
which they have since entered. 

By reference to the Constitution of Massachusetts, 
Part I. Art. IV. (which was adopted before the Arti- 
cles of Confederation were executed), it will be seen, 
that she, in asserting the right of her people to gov- 
ern themselves as a free sovereign and independent 
State, limits these rights to the exercise and enjoy- 
ment of every power, jurisdiction, and right '■'■which is 
not^ or tnay not hereafter he, by them expressly delega- 
ted to the United States of America in Congress as- 
semhled" Now, at that time the United States of 
America was the 07ily nation known or recognized, or 
claiming to exist, as one of the family of nations, and 
of which each State formed only a component part, 
pursuant to the Declaration of Independence. No 
disavowal of distinct or independent or sovereign 
nationality could be more explicit. 

The local allegiance, however, of the inhabitants 
of each colony, before due to the Crown, was 
declared to be transferred, not to the central national 



STATE RIGHTS. 



11 



Government thus established, but to the colony itself, 
or, in the language of a resolution adopted by the 
Congress, " to the laws of the colony." The relations 
of individuals to the national Government were no- 
where defined, but left to construction upon the 
nature of this union of the colonies or States in a 
national sovereignty. 

Hitherto there had been no written articles of 
confederation or agreement, by which the obligation 
of the States, or the authority of the Congress, or the 
nature of the central Government, were defined. 

The powers of an external national sovereignty 
had been assumed and acted upon by the consent 
of the people ; but its internal authority, or means of 
maintaining itself, were all left to loose construction, 
or the voluntary agency of the several independent 
States to comply with their respective duties, result- 
ing from the alliance. 

Whether either of the colonies or States was so 
bound by this alliance as to be incapable of abandon- 
ing it at pleasure — being in the nature of a voluntary 
party to a copartnership without limitation of time, 
and without any right on the part of the other States 
to enforce its compliance with the requisitions of the 
Congress for the carrying-on of the war of independ- 
ence, in which they had thus united — may perhaps 
be considered questionable ; although such abandon- 
ment would seem to be an obvious breach of good 
faith to the rest, with which it had embarked as in a 



12 RECONSTRUCTION. 

common cause. But the decision of the question is 
immaterial, as it was soon finally disposed of before 
it was practically, if ever, raised by the subsequent 
Articles of Confederation. 

The embarrassment and inefficiency evidently re- 
sulting from this state of affairs rendered some more 
definite bond of obligation and union essential; and 
the Congress in November, 1777, addressed a circu- 
lar letter to the legislatures of the several States, 
recommending them " to invest the delegates of the 
States with competent powers ultimately, in the name 
and behalf of the State, to subscribe articles of 
confederation and perpetual union of the United 
States, and to attend Congress for that purpose on or 
before the tenth day of March next." 

But it was not till 1781 that the articles were 
adopted, owing to many causes of delay, a principal 
one of which was the claims of several of the States 
to the Western lands, extending to the Pacific Ocean, 
which it was contended by the other States should be 
held in common, as purchased by the common blood 
and treasure of all of them ; and which lands were 
finally ceded to the United States immediately after 
the articles were executed, thus constituting a most 
important further bond of national union, and an 
inestimable element of future wealth and power. 

By these Articles of Confederation, the government 
was to consist of a single representative body called 
a " General Congress," in which were vested all the 



STATE RIGHTS. 13 

powers, executive, legislative, and judicial, granted 
to the United vStates. Each State was to maintain its 
own delegates ; and, in the determination of questions, 
the voting was to be by States, each State being 
entitled to one vote. The agreement was styled 
" Articles of Confederation and Perpetual Union " 
between the thirteen States named; and this body 
politic was styled " The United States of America." 
Each State retained its sovereignty, freedom, and 
independence, and every power, jurisdiction, and right 
not expressly delegated to the Congress. And the 
nature and objects of the Union were described as a 
firm league of friendship between the States for their 
common defence, the security of their liberties, and 
their mutual and general welfare ; and the parties 
bound themselves to assist each other against all force 
offered to or attack made upon them, or any of them, 
on account of religion, sovereignty, trade, or under 
any other pretence whatever. The free citizens of 
each State were entitled to all privileges and immuni- 
ties of free citizens in the several States. All the 
general powers of external national sovereignty were 
vested in the Congress, — the powers of treaty, peace 
and war, regulating the coin, creating public debt, 
building and equipping a navy, determining the 
number of land forces, and of making requisitions 
upon each State for its quota of men and money. 
The several States were prohibited from receiving or 
sending embassies, or entering into any treaties with 



14 RECONSTRUCTION. 

foreign powers or with each other without consent of 
Congress. 

In short, the Articles of Confederation constituted 
the people of the States, thus united, one nation, as 
entirely as it was practicable for any mere league or 
confederation of States to do so. 

They were of essential importance in enabling the 
Congress to carry through the war. But after the 
peace, and when the bond of a common paramount 
interest and necessity had ceased, and State jealous- 
ies, rivalries, weaknesses, and selfishness had shown 
the entire insufficiency of such a compact for the 
necessary strength and respectability of the nation 
abroad, and its internal peace and security at home, 
the people became conscious of the necessity of 
establishing a closer bond of union as one people, 
under a common government, having internal as well 
as external sovereignty ; to which each citizen should 
owe a personal allegiance, and from which he might 
claim protection ; and whose powers for all national 
purposes should act upon each individual citizen 
directly, and not through the agency of State gov- 
ernment. 

And from this necessity resulted the Constitution, 
upon the nature and construction of which the solu- 
tion of this question must now depend. 

Such was the condition of the nation and of the 
several States at the time of the adoption of that Con- 
stitution, and such the evils which it was intended 
to remedy. 



STATE RIGHTS. 15 

From this history, nothing can be clearer than the 
proposition that no one of these States had ever been 
free, sovereign, and independent in its external^ how- 
ever it may have been so in its internal relations; 
but with regard to them no controversy has ever 
arisen. 

There has never been a moment, from the breaking- 
out of the Revolution, when the inhabitants of any one 
of these States ever pretended to be a separate people 
from those of any other State in any national relation 
whatever ; on the contrary, they always claimed to be 
portions of the people of Great Britain at the outset, 
and to become exclusively one independent people 
after declaring their final separation from her. Rights 
of national citizenship were never claimed by the in- 
habitants of any particular State, as distinguished 
from those of any other State, but always as citizens 
of the United States, comprehending them altogether. 
It is true that they were internally divided into sepa- 
rate and distinct municipal governments, sovereign 
and independent in all that regards their domestic 
relations; and could contract as such States, as being 
entirely independent so far as they had not surren- 
dered the power so to contract to the central Govern- 
ment. 

But no one, it is believed, can contend, that, after 
the adoption of the Articles of Confederation, any 
one State could have broken off from the confederacy 
and made a separate treaty of peace with England, 



16 REOONSTRUCTION. 

or allied itself to any other foreign power ; or could 
have established any laws or regulations subversive 
of the common rights and interests of all, in their 
external relations with other nations or in those inter- 
nal to each other. 

To be sure, no such act would have constituted any 
personal crime on the part of any inhabitant of such 
State against the General Government, because they 
owed personal allegiance to the State only. 

But the General Government would have had the 
clear and manifest right, in such case, to interfere, 
and by force of war, if necessary, to compel con- 
formity by the State to the general compact, and to 
enforce its requisitions if disobeyed. Civil war was 
thus, indeed, the only remedy ; and it was to provide 
against this evil and weakness, among others, that 
the Constitution was established. But, if the result 
of any such war had been the subjugation of the 
State, it is clear that it would have been at the 
mercy of the victor as to terms of future re-admission 
to the rights of the confederation. 

At the time, then, of the formation of the Consti- 
tution, the inhabitants of the thhteen States, retaining 
the internal sovereignties of each of them, were united 
as one people or nation in all that regarded external 
sovereignty, or any claimed or acknowledged national 
existence ; and were possessed of a vast extent of un- 
occupied territory as tenants in common and joint 
owners, which was to be divided into new States in 



STATE RIGHTS. 17 

union with them, and composing with them a common 
country, so fast as it should become peopled ; and 
which was incapable of division or apportionment 
among them upon any principle on which it had been 
granted, — the only one recognized being that of a 
national domain. 

They had become, therefore, essentially a nation 
under a government exercising unqualified external 
sovereignty, possessed of a common country, and need- 
ing only the surrender to it of a portion of certain 
independent rights hitherto preserved by them as 
separate States, which interfered with their enjoy- 
ment of the internal sovereignty essential for secur- 
ing the blessing of a perfect nationality, and which 
the Constitution was destined to provide for. 



18 RECONSTRUCTION. 



CHAPTER II. 

THE CONSTITUTION — FORMATION OF, AND INDIVIDUAL 
AND STATE RIGHTS AND DUTIES UNDER IT. 

There was a provision in the Articles of Confede- 
ration for making alterations therein, by the assent of 
a Congress of the United States and of the legisla- 
tures of the several States. And in February, 1787, 
in the Congress then in session, a resolve was passed, 
reciting that whereas experience had evinced that 
defects existed in the present confederation, and a 
convention of delegates had been proposed to remedy 
them, " and such a convention appeared to be the 
most probable means of establishing in these States 
a firm national government,'' it was expedient to call 
a convention of delegates for the purpose of revising 
the articles, and reporting to Congress and the several 
legislatures '-such alterations as should, under the 
Federal Constitution, be adequate to the exigencies 
of government and the protection of the Union." 

The several States assented to the proposition, and 
appointed delegates to the Convention, which assem- 
bled at Philadelphia, in May, 1787. 

Although the purpose of the Convention was to 
amend the Articles of Confederation, it was soon ap- 
parent from the common stock of information con- 



THE CONSTITUTION. 19 

tributed by the delegates, of the utter inefficiency of 
any mere league or confederation to accomplish the 
ends desired, that nothing short of a consolidated 
national government, with full powers of maintaining 
itself internally, as well as externally, by direct action 
upon the mdividual citizens composing the nation, 
in regard to all that pertains to the exercise of na- 
tional as distinguished from municipal authority, could 
answer to the national exigency. 

And the final result of prolonged, laborious, and 
exhaustive discussion of the subject by the greatest 
men of that age, and who would have been not less 
distinguished in any other age or nation, was the 
present Constitution. 

As, however, it far transcended any mere alteration 
or amendment of the Articles of Confederation, — 
being in fact the substitution of " a firm national 
government" over the whole people of the United 
States, in place of a league of the States, — it was 
clearly necessary to submit its adoption directly to the 
people, acting in their primary capacity, and not to 
the State legislatures, as mere amendments of the 
articles might have been and were intended to be; it 
being obvious that State legislatures could have no 
authority thus to transfer the personal allegiance of 
their citizens to that of a central government, or part 
with the sovereign power with which they were 
invested by the people under their several State con- 
stitutions. 



20 RECONSTRUCTION. 

The question was of the substitution of a constitu- 
tional government in the place of a league, and was 
one, therefore, which the people alone, and not the 
State legislatures, could lawfully decide. 

The Constitution was therefore reported by the 
Convention to the Congress for its approval and sanc- 
tion, and by it the several State legislatures were 
invited to recommend the assembling of conventions 
of the people to decide upon its adoption or rejection ; 
and it was finally adopted by the people, or their dele- 
gates to conventions called for the purpose of deciding 
upon it, and thus became the supreme law of the 
land. And by the nature and objects and letter and 
spirit of this Constitution must the question at issue 
now be decided, with the aid, where needed, of 
such light as may be drawn from the previous history 
above alluded to. 

Now, up to the time of the adoption of the Consti- 
tution, the people of the several States had, as above 
shown, become one people or nation, so far as their 
external national sovereignty was concerned,* the gov- 
ernment of which resided in the general Congress ; 
each of the States possessing the right of sending 
delegates to that Congress, and the right to one vote 
in its deliberations and decisions. But each remained 
at the same time supreme and independent in its in- 
ternal sovereignty, excepting in so far as the Articles 
of Confederation imposed limits thereupon, — which 
limits were few, but of essential importance in pro- 



THE CONSTITUTION. 21 

viding for the necessities of internal commerce and 
equality of rights between the respective inhabitants 
of the different States. 

But by the Constitution all this was changed. By 
its express terms, the national Government was no 
longer to consist of a confederatioti of States, to be 
administered by their respective delegates, but a gov- 
ernment of the whole people of the United States as 
one people, under one supreme sovereignty internally 
and externally so far as national sovereignty was con- 
cerned ; a government of which the people were to 
elect the legislators and rulers by their own personal 
votes, as representing them, and accountable directly 
to them, and not as representing the States, or as 
accountable to them. 

In short, it established a "firm national govern- 
ment" as supreme in all things, touching its external 
and internal sovereignty over its subjects or citizens, 
as that possessed by any other government of any 
other nation. The existence of the several States 
as independent and sovereign in their municipal or 
domestic relations, and as having certain rights and 
powers as constituents of the General Government, 
was, indeed, fully provided for, and an equal repre- 
sentation was reserved to them in the Senate, — a 
most wise a. id salutary measure for the preservation 
of that independence and sovereignty, and for con- 
stituting a most important check upon the popular 
body representing the whole people. It is worthy 



22 RECONSTRUCTION. 

of remark, that, Avliilc in the Articles of Confedera- 
tion the sovereignty, freedom, and independence of 
each State, and every power, jurisdiction, and right 
not expressly delegated to the United States in Con- 
gress assembled, are expressly reserved, not a word 
is found in the Constitution of any sovereignty as 
derived from, or granted to, or existing in the States. 
On the contrary, the declaration that " the powers 
not delegated to the United States by the Constitution, 
nor prohibited by it to the States, are reserved to the 
States respectively or to the people," conclusively 
shows that the whole people of the United States, 
as one people, were considered and intended to be 
recognized as the ultimate source of all national 
power and sovereignty. 

The States were to enjoy all the powers they 
originally possessed not prohibited to them, and 
certain very important new powers granted to them, 
by the Constitution ; the government of the United 
States was to possess all the powers thereby vested 
in it expressly or by necessary implication ; and 
the inhabitants of all the States, coUeciively as one 
people, were made the depository of all other power 
whatsoever. 

Much profitless discussion has taken place upon the 
manner in whicli the Constitution was adopted ; the 
advocates of secession and other apologists of it as- 
serting that the Constitution was the act, or creation 
of the State governments, in the exercise of State sov- 



THE CONSTITUTION. 23 

ereignties, while others contend that it was the crea- 
tion of the whole people of the several States, acting 
as one people, for the establishment of one national 
government. 

Nothing is plainer, however, than that the State 
governments had nothing to do with the matter, fur- 
ther than to recommend to their several peoples to 
meet together and appoint delegates to conventions 
to represent and act for them upon the question of its 
adoption, and to report their decisions to the Con- 
gress. 

This was the only course which was open to secure 
the uniform calling of such conventions, — to give the 
legislative sanction of each State to any transfer or 
surrender which the people might see fit to make to 
the General Government of any of the powers which 
they had heretofore vested in the State governments ; 
and above all was the only mode of obtaining the true 
result of a popular vote of the whole people upon the 
subject ; it being obvious that the various interests, 
opinions, and sentiments of the whole people could 
be far better ascertained by this mode of voting 
upon the question in divisions or districts, than it 
could be by a general vote, in which the majority of 
the whole might control and constrain the universal 
wish or interests of large and important sections of the 
country. It is undeniably true, that the people of 
each State were so far sovereign and independent 
that they could not be required to surrender that 



24 RECONSTRUCTION. 

sovereignty and independence, to the extent required 
by the Constitution, without their consent ; and this 
would of necessity require the inhabitants of each 
State to vote separately and collectively on the question. 
But it is none the less true, that the decision was not by 
the State governments in their corporate capacity, but 
by the people in their primary capacity, deciding 
whether they Avould or would not become one people 
with those of all the other States, under one form of 
entire national sovereignty. 

But, be this as it may, the fact seems indisputable, 
that the inhabitants of the several States, by the 
adoption of the Constitution, did voluntarily unite 
themselves as one people under one supreme national 
Government invested with all necessary powers of 
national sovereignty, internal and external, — a Gov- 
ernment which claims from them, as individuals, 
personal allegiance to its authority, and extends over 
them personal protection; and which claims also from 
the political bodies or States, of which they were also 
members, allegiance as such States and compliance 
with the corresponding obligations imposed upon 
them, while extending also over them its protection 
in the enjoyment of all their political rights as such 
States. 

The principal rights of individuals as citizens of 
the United States, thus created by the Constitution, 
were those of the elective franchise in forming the 
House of Kepresentatives ; of protection in property, 



THE CONSTITUTION. 25 

liberty, and life under the laws ; and the rights of 
universal citizenship in the territories and jurisdiction 
of each State. The principal rights of the States 
were the elective franchise of equal representation in 
the Senate ; of protection in the maintenance of 
a republican form of government, and against for- 
eign invasion and internal sedition ; with the enjoy- 
ment, in common with the inhabitants of all the 
other States, of free and unrestricted trade and 
intercourse among themselves, and of equal com- 
mercial advantages in their trade and intercourse with 
foreign nations. 

To which was added the participation in the 
sovereign power of enacting amendments to the 
Constitution, if Congress should elect that mode 
of submitting any to the tribunal of State determi- 
nation. 

All these powers, rights, and immunities were cre- 
ated hy the Constitution, and made dependent upon its 
authority. They have no other origin, no other right 
to be; and necessarily involve, upon every principle 
of public or civil law, justice and good faith, corre- 
sponding obligations for obedience to its authority and 
fidelity to its support. 

So far, therefore, is the proposition that the States 
created the Constitution, so often asserted, from being 
true, that the reverse is much more nearly so. It 
was the Constitution which conferred all the rights 
which the States derived under it, and now have, as 

4 



26 RECONSTRUCTION. 

original grants. It was the people of the whole 
United States which thus created and defined the indi- 
vidual, corporate, and political rights of all the parties 
to it. 

The only authors or franiers of the Constitution 
were the inhabitants of the several States in their 
primary capacities, as the acknowledged fountains of 
all political power, who thus changed the organi- 
zations and political constitutions of the several States ; 
taking from tliem certain hitherto existing independ- 
ent corporate powers and immunities, and investing 
tlicm with certain new powers, immunities, and rights, 
not before enjoyed ; imposing upon them certain new 
duties and obligations, in order to adapt them to 
the new order of things ; and uniting themselves as 
one consolidated nation or people, in which all politi- 
cal power, not thus otherwise disposed of, was de- 
clared to be thereafter for ever deposited. 

We have then next to ascertain what were the 
relations of the inhabitants of tlie several States to 
the national Government, and their rights and obliga- 
tions as such inhabitants under the Constitution. 



STATES UNDER THE CONSTITUTION. 27 



CHAPTER III. 

STATES UXDER THE CONSTITUTION — RIGHTS OF REPRE- 
SENTATION IN CONGRESS — CONDITIONS OF— EFFECTS 
OF STATE REBELLION. 

By the Constitution, entire nationality was substi- 
tuted for confederation. While, as before stated, the 
people of the several States retained their internal 
sovereignty over their domestic relations, they sur- 
rendered to the nation all the attributes of external 
and many of the most essential of those of internal 
sovereignty ; entered into obligations of allegiance 
and obedience to the Constitution, and all laws made 
in pursuance thereof, as the supreme law of the land ; 
and made an oath by persons elected to offices of 
State to support the Constitution, essential to the 
organization of their respective State governments. 
In return for which, the Constitution conferred upon 
the citizens of all the several States, or secured them 
in the enjoyment of two distinct classes of political 
rights and privileges, — one of these pertaining to 
them individually as citizens of the nation; and the 
other consisting of those which each has in combina- 
tion with others as members of the political corporate 
body or State of which they are inhabitants, including 



28 RECONSTRUCTION. 

those of representation in the Senate and House of 
Representatives in Congress. 

The word " State," therefore, as used in the Consti- 
tution, can only be construed to signify one under a 
government organized according to its requisitions, 
recognizing its supreme authority, and admitting the 
duty of obedience to its provisions and to all laws 
enacted in conformity with it. If a State be not in 
this condition, although it may still exist as a State 
within the Union, its inhabitants remaining subject 
to the territorial jurisdiction of the General Govern- 
ment, and to the Constitution and tlie laws, and to 
compulsory obedience to them, — nevertheless, it is 
not a State contemplated by the Constitution as en- 
titled to the rights of those who have remained in full 
communion under it. And this proposition, seem- 
ingly so self-evident, is made, if possible, more mani- 
festly true upon examining its provisions touching 
the rights and obligations created by it. Take, for 
instance, the rights of representation in Congress, the 
immediate subjects of inquiry. 

One of the most important of the rights or privi- 
leges which the Constitution confers upon every citi- 
zen of the United States as an individual, and that 
mainly involved in the consideration of the question 
in hand, is that of the elective franchise, in being 
represented in the House of Representatives in the 
national Government. This is obviously a national 
right, or one to which he is entitled as a citizen of 



STATES UNDER THE CONSTITUTION. 29 

the United States, to be exercised for the common 
welfare of them all. And the members of the House, 
elected by its exercise, are representatives of the 
nation, a portion of its Government, and, in no proper 
sense, representatives of the State, or in any way jus- 
tifiable in regarding its peculiar interests otherwise 
than as component parts of the good of the whole. 

But although the individual is invested with this 
franchise as a citizen of the United States, or as one 
member of the whole nation, and to be exercised for 
the common good, it is nevertheless one granted to 
him as an inhahitant or member of the State to lohich 
he belongs, and is inseparately connected with such 
membership ; so that if the State should cease to 
exist as a duly organized State, within the provisions 
of the Constitution, or he should cease to be an 
inhabitant of any such State, the riglit or franchise 
would no longer exist, although he might continue to 
be a citizen, and, as such, answerable to the laws of 
the United States. 

This is evident from the language and spirit of the 
Constitution. It provides that " the House of Rep- 
resentatives shall be composed of members chosen 
every second year by the j^eoj^Ie of the several States ; 
and the electors shall have the qualifications requi- 
site for electors of the most numerous branch of the 
State Legislature." 

Again : " No person shall be a Representative who 
shall not, when elected, be an inhabitant of that State 



30 RECONSTRUCTION. 

in which he shall be chosen." Again : " Representa- 
tives and direct taxes shall he apportioned among the 
several States which may he included in this Union 
according to their respective numbers." " The num- 
ber of Representatives shall not exceed one for every 
thirty thousand, but each State shall have at least one 
representative." " When vacancies happen in the 
representation from any State, tlic executive authority 
thereof shall issue writs of election to fill such vacan- 
cies." The existence, therefore, of this franchise, al- 
though it is vested in the individual as a citizen of 
the United States, is nevertheless made dependent 
upon his membership of a State, regularly constituted 
within the Union, and upon the action of such State 
in prescribing his qualifications as an elector ; and, in 
case of a vacancy, upon the will of the executive to 
cause it to be filled. 

It follows, therefore, that, if the State, of which 
any citizen of the United States is an inhabitant, be 
not one duly organized, or otherwise be not in com- 
munion with the other States, in obedience to the 
Constitution and the laws, or shall have become by 
repudiation or any other cause not entitled to the 
rights and privileges of a State under the provisions 
of them, no inhabitant of such State can claim the 
right to exercise tlie franchise, however loyal he 
personally may be to the General Government, or how- 
ever zealously he may have opposed such disorgani- 
zation, repudiation, or rebellion, and so be an unwiUing 
victim to its consequences. 



STATES UNDER THE CONSTITUTION. 31 

It may seem a hardship upon the individual to be 
thus deprived of a right or privilege by the fault of 
others to which he is no voluntary party ; but it is 
an unavoidable consequence of his political condition 
as the citizen of a contumacious or rebellious State, 
rendering personal discrimination impossible. 

This rule, founded in unavoidable necessity, ap- 
plies, with the semblance of still greater hardship, 
to the property of innocent inhabitants of a State in 
rebellion against the national Government. If a State 
having jurisdiction of a definite territory, of which it 
is possessor, rebel against the sovereign national Gov- 
ernment, and actual war has arisen between them, 
such territory is by public law considered to be ene- 
mies' territory, and all property within its limits, to 
whomsoever belonging, as enemies' property, giving 
strength and resources to the enemy, and, as such, lia- 
ble to capture and condemnation ; so that, in the 
late rebellion, a vessel belonging to inhabitants of 
Richmond, and captured by a national vessel, was 
adjudged lawful prize, although the owners were citi- 
zens of the United States, and claimed that they had 
ahvays been and were loyal to them, and in no sense 
voluntary parties to the rebellion. (Prize Cases, 2 
Black's United-States Reports, 635.) 

It may seem needless to discuss the point further, 
as the express language of the provisions of the Con- 
stitution seems to make it so clear. It may be added, 
however, that any other construction, considering 



32 RECONSTRUCTION. 

this right of suffrage to be wholly personal as that of 
a citizen of the United States only, and not dependent 
upon the relations of his State to the Union, would 
involve, as a necessary consequence, the right of the 
inhabitants of a State in actual rebellion to elect and 
send representatives to Congress, so long as they re- 
mained without arrest or conviction for the crime of 
treason by due course of law ; for, until such arrest or 
conviction, no civil right can be accounted lost or for- 
feited. 

Such being believed to be the principles of con- 
struction applicable to the Constitution, we have next 
to consider the effect of the rebellion upon the rela- 
tions of the people of the State to the Union, in refer- 
ence to their right of suffrage as citizens of the United 
States, and to representation in the national Govern- 
ment. 

Now, by the rebellion, which was in the name and 
by the asserted powers and authority of the several 
rebel States, assuming to act in their political capaci- 
ties, it is manifest that all their respective constitu- 
tions or governments contemplated by the Constitution 
of the United States, or in conformity therewith, were 
entirely abolished ; and that entirely new ones were 
substituted, having no affinity with those remaining 
as loyal States in the Union, and none of the elements 
which were necessary to entitle their inhabitants 
to participate in any riglits of representation in the 
national Government. The governments, which they 



STATES UNDER THE CONSTITUTION. 33 

had before rebellion, were founded upon the unity 
of the people of all the States as one people or na- 
tion, owing personal allegiance, and upon well-defined 
and established constitutional relations to the central 
Government; and could not be lawfully organized 
without the taking of the oath of such allegiance by 
every legislative, judicial, and executive officer of 
the State. They were also possessed of certain lim- 
ited powers, prescribed by the Constitution, and were 
under numerous specified obligations to the General 
Government ; all which were essential elements of their 
nature as States under the Constitution, and on which 
the political rights of their inhabitants to be repre- 
sented in the General Government were founded. Bat 
those governments, in all their essential relations to 
that of the United States under the Constitution, were 
utterly abrogated by the rebellion ; and new ones 
were substituted, founded on the denial of any such 
national unity, or any such allegiance, relations, limits, 
or obligations. Nothing could be more entire than 
the total abolition of the old State governments as 
they existed at the formation of the Constitution, and 
continued up to the time of the rebellion. 

When, therefore, the rebellion was subdued, it is 
manifest that there were no governments existing in 
the rebel States, in conformity with the Constitution, 
or which could entitle their inhabitants to the exercise 
of any political powers under it. 

The people of these States were, as to the United 



34 RECONSTRUCTION. 

States, without any civil government "wliich that of 
the United States was bound to respect, and subject 
entirely to its military authority, or to such govern- 
ments as it should sec fit to impose, until State 
goA'-ernments, in conformity to the Constitution, 
should be again constructed. 

All their inhabitants who had voluntarily taken 
part in the rebellion were criminals, who, as individual 
citizens, had forfeited their right to property, liberty, 
and life under the laws, for their attempt to destroy 
the Government of their country ; and had in the 
same manner forfeited and lost their corporate rights 
of representation and participation in its Government. 
And as they could only be restored to the former, by 
authority of (he Government, so it alone was to 
restore the latter. Those States, as to any organized 
constitutional government entitling them to represen- 
tation in that of the United States, were utterly 
" without form, and void." 

And such was then the universal belief and convic- 
tion of all the officers of tlie Government, and of the 
people of the loyal States, excepting those who had 
always sympathized in the rebellion, and who, at 
the least, are now entitled to the credit of consistency 
in taking the opposite ground. 

No one was more emphatic in the assertion of this 
principle than the President, who, in an official proc- 
lamation, declared that those States " were deprived 
of all civil government; " and authorized the publica- 



STATES UNDER THE CONSTITUTION. 35 

tion of his declaration in conversation that '• the 
State institutions are prostrated, hiid out on the 
ground, and that tliey must he taJcen iip and adajjied 
to the j^rogress of events.'' 

So j\Ir. Seward, in his telegram of July 2-i, 1865, 
to the provisional Governor of Mississipj)i, said " the 
Government of the State will be provisional only 
until the civil authorities shall he restored loiih the 
apiyrovcd of Congress,'' And again, in that of Sept. 
12, 1865, a little more than a year ago, to Governor 
Mtu'vin, of Florida, he says, " It must, however, be 
distinctly understood, that the restoration to which 
your proclamation refers will he suhject to the decision 
of Congress." And the whole course of the Presi- 
dent's conduct was in conformity with it. He held the 
inhabitants of those States, as he lawfully might and 
was bound to do, as under military control, and with- 
out authorized civil government; appointed provisional 
Governors; and interfered with, and dictated terms 
for, the formation of their local governments. All 
this was justifiable only upon the hypothesis that he 
was exercising his military authority, in order to 
bring the people into loyal relations to the national 
Government ; but it was entirely inconsistent with 
the idea that the States had any lawfully established 
civil governments under the Constitution. For, if 
they had, he could with no more propriety have 
thus interfered with them than with those of Penn- 
sylvania or New York. 



36 IlECO>'STRUCTION. 

And he continues to act on the principle that no 
such civil governments exist in those States down to 
this day. On what other principle does he justify 
interfering with the government of Lousiana, or call- 
ing the Governor, elected by her people, to account 
for his conduct, or passing judgment upon the law- 
fulness or unlawfulness of conventions assembled 
there, or on the actions of State officers 1 And by 
what right docs he forbid and prevent the pirate 
Semmes from holding the judicial ofhce to which he 
was duly appointed under the authority of the State 
Government of Alabama, if it has one which the Gov- 
ernment of the United States is bound to respect? 
And by what authority did he order the soldiery of the 
United States to aid and assist the murderer Monroe, 
in putting down an assembly of loyal citizens of New 
Orleans, if the State of Louisiana is under a regu- 
larly constituted State government'? Can he, or 
would he dare to, order the troops of the United 
States, to come to the help of the city police in any 
loyal State, unless on application by the State Gov- 
ernment ? Any right of such interference is prohib- 
ited by the Constitution. And, if the President were 
to be impeached for tliis interposition of military 
force in New Orleans, the only justification he could 
set up would be, that the State had no civil govern- 
ment, but one in subordination to his military author- 
ity as commandcr-in-cliief, and that the interposition 
was necessary for the preservation of good order. 



STATES UNDER THE CONSTITUTION. 37 

Considering, then, the proposition established, that 
the inhabitants of the disloyal States, by their rebel- 
lion and open war against the United States, had 
abandoned, lost, or forfeited all civil and political 
rights nnder the Constitution, including those of rep- 
resentation in Congress, the next inquiry is when and 
in what manner such rights might revert or be re- 
stored to them. 

It is maintained by some that they were never lost, 
but continued in full force during the rebellion, — 
that is the doctrine of the minority of the " Committee 
on Reconstruction ; " but, if the above views be sound, 
it is obviously erroneous, and needs no further answer. 
Others hold that although these rights were sus- 
pended or in abeyance during the rebellion, and until 
peace was effectually secured by the exercise of 
military power, yet that, when that was attained, the 
inhabitants of those States were instantly re-instated 
in all their previous rights and privileges, and, upon 
re-organizing their State governments so as to bring 
them within the requisitions of the Constitution, they 
became entitled to representation and participation in 
the administration of the national Government. 
And this, perhaps, is the general belief of those who 
advocate the immediate recognition of those rights. 

On the other hand, it is maintained that civil and 
political rights and privileges under the Constitution, 
being thus forfeited or lost by the voluntary flagrant 
treason of the inhabitants of those States, can only 



38 RECONSTRUCTION. 

be restored by the permission and authority of that 
constitutional power against which they rebelled, and 
by which they have been subdued 

It is much to be regretted, that this question has 
been too often, if not generally, discussed under a 
form which is believed to be, not only no true state- 
ment of the real issue, but one tending greatly to 
distort and obscure it ; namely, whether such States, 
by reason of the rebellion of their inhabitants, were 
to be accounted as in or out of the Union. No 
such issue has arisen upon the facts, and the ques- 
tion in that form is worse than a merely profitless 
abstraction : it is a pernicious play upon words. 

They, duriug and after the rebellion, were States 
in possession of defined territories, and under organ- 
ized governments to which they professed allegiance. 
And they were clearly in the Union, in so far as 
their territories, people, and amenability to the 
Constitution and laws of the Union are concerned. 
The national Government still maintained its right of 
territorial jurisdiction over them, and of enforcing 
obedience to the Constitution and the laws, as fully 
as it ever had ; and their inhabitants remained citi- 
zens of the Union, and entitled to all the civil and 
political rights and immunities which they ever pos- 
sessed as such, excepting those which they had for- 
feited or lost or abandoned by their treason. 

By that treason, each inhabitant has forfeited his 
liberty and life as the penalty of his crime, if the 



STATES UNDER THE CONSTITUTIOX. 39 

Government shall see fit to exact it by due process of 
law ; but, until arrest and sentence under such con- 
viction, he is still entitled to protection and immunity, 
and the enjoyment of all the civil rights which he 
ever had resulting from such merely individual citi- 
zenship. And he may be restored to the future 
undisturbed enjoyment of them by an act of amnesty 
of the General Government, or by a pardon from 
the Executive after conviction and sentence. 

But, with regard to the political rights of the 
inhabitants of a State in its corporate political capa- 
city, — those of representation in the House and 
Senate, for instance, — these, as has above been 
shown, do not rest upon nor result from their individ- 
ual citizenship, as citizens of the United States merely, 
but depend also upon the political relations which the 
State bears to the Union, and cease to exist whenever 
it has suspended, lost, forfeited, or abandoned the 
riii'hts bclonsjins: to it as a Stale in its normal relations 
to the Government ; and can be restored oidy by 
restoration of the State to those relations. 

Such being, then, the condition of the States lately 
in rebellion, what are the rights and duties of the 
General Government in regard to them, and to the 
restoration of their relations, rights, and privileges as 
equal States in the Union ? 



40 RECONSTRUCTION. 



CHAPTER IV. 

POWERS AND DUTIES OF GENERAL GOVERNMENT IN RE- 
LATION TO THE STATES IN REBELLION, AND WHEN 
LEFT BY THE REBELLION WITHOUT ORGANIZED GOV- 
ERNMENTS UNDER THE CONSTITUTION; AND TO RES- 
TORATION OF THEIR POLITICAL PRIVILEGES UNDER 
IT. — RIGHTS CONSEQUENT UPON WAR. 

There is no express provision in the Constitution 
relating to the rebellion of the inhabitants of a State 
in its corporate capacity against the authority of the 
United States, nor to any penal or other conse- 
quences resulting from such rebellion, excepting in 
so far as any citizen of the State may be punishable 
individually for voluntarily participating in it, as 
above suggested. And hence it has been argued, 
that, in such cases, the General Government has no 
power to compel obedience or fulfilment of the obli- 
gations which the Constitution imposes upon the 
several States. 

This was the theory adopted by Mr. Buchanan in 
the most perilous crisis of the country's history, and 
from which the leaders of the rebellion derived their 
chief encouragement to resist the national authority, 
which, if duly exerted, might have saved her from 
the terrible struggle that ensued. 



POWERS OF GENERAL GOVERNMENT. 41 

And it is the argument still of secessionists and 
their sympathizers. A moment's consideration, how- 
ever, seems sufficient to expose its fallacy. Upon 
looking into the Constitution, it is found to contain, 
among others, the following express provisions, apply- 
ing exclusively to the States in their political corpo- 
rate capacities as such, namely: "The United States 
shall guarantee to every State in this Union a repub- 
lican form of government." " No State shall enter 
into any treaty or alliance or confederation," or 
" enter into any agreement or compact with another 
State or with any foreign power." " The citizens of 
each State shall be entitled to all the privileges and 
immunities of the several States." " The Constitution 
and the laws of the United States which shall be 
made in pursuance thereof, shall be the supreme law 
of the land." " The President shall take care that the 
laios shall he faithfully executed.'''' And " Congress 
shall have power for calling forth the militia to 
execute the laws of the Union, and suppress insur- 
rection and repel invasion." And, in the face of 
these provisions, is it possible to believe that any one 
State may, at pleasure, impose a despotic or monarch- 
ical government upon an unwilling and oppressed 
portion of its people X or may enter into a treaty 
of alliance, offensive and defensive, with a foreign 
nation] or into one of commerce, with discriminat- 
ing privileges in its favor, destructive of the interests 
of the other States? or may prohibit the citizens of 



42 RECO]SSTRUCTION. 

the other States from enjoymg the same privileges 
and immunities with its own within its borders, and 
expose them to loss of liberty and life upon undertak- 
ing to reside within them ] or may openly violate the 
Constitution or the laws of the land, and set the 
Government of the United States at defiance ? — and 
that there is no redress, but that these violations of 
the Constitution must be quietly acquiesced in as 
remediless ? Are these provisions — so express, and 
so obviously essential to the internal peace, the 
prosperity, the unity, the sovereignty, and security of 
the nation, and without the power to compel the 
fulfilment of which it would cease to be a nation — 
meaningless words, a mere hrutum fulmen " of sound 
and fury, signifying nothing " \ Such a construction 
of the Constitution must be accounted palpable non- 
sense upon any other theory than that of the absolute 
right of secession. What, then, is the remedy, and 
what are the consequences involved in the application 
of it? 

And it is obvious tliat war is the only remedy. 
Any effective denial or violations of these provisions 
of the Constitution by any State must be by forcible 
resistance of the lawful officers of the United States, 
civil or military, engaged in the duty of compelling 
c( mpliance with them ; for so long as they should 
continue to be practically obeyed, no mere protest 
against their obligation, by any mere manifesto or 
proclamation, Avould justify recourse to force of arms, 



POWERS OF GENERAL GOTERNMEIsT. 43 

any more than wonld the mere declaration of oppo- 
sition to the Government, and of an intention to 
resist its laws by force of arms, amount to treason 
under the Constitution. And, if such forcible resist- 
ance be resorted to by a State, the case presented 
becomes at once that of an organized government, 
possessing territorial jurisdiction, and asserting sov- 
ereignty and independence internal and external, and, 
claiming the personal allegiance of its citizens as 
paramount to all other allegiance, taking up arms to 
repel the attempt of another sovereign State to 
enforce obedience to its asserted authority. And 
this is nothing less than actual war — civil war 
indeed, but none the less actual war — between 
sovereign States, or those claiming to be such, and 
attended with all the attributes and consequences of 
war according to the pubUc law, or law of nations. 

Now, one of the best-established principles of that 
code is, that, as there is no acknowledged arbiter or 
judge between the parties engaged in war, the victor 
has of necessity the right to dictate the terms of 
peace, provided that they be not inconsistent with 
humanity and the generally recognized principles of 
that code. And this rule, under certain limitations, 
is as applicable to a civil war as to one between 
sovereign States of no antecedent connections with 
each other. 

Vattel thus lays down the law of nations on this 
subject : " A civil war breaks the bands of society 



44 RECONSTRUCTION. 

and government, or at least suspends their force and 
effect; it produces in the nation two independent 
parties, who consider each other as enemies, and 
achiowledge no common judge. These two parties, 
therefore, must necessarily be considered as constitut- 
ing, at least for a time, two separate bodies, two 
distinct societies. Having no common superior to 
judge between them, they stand in precisely the same 
predicament as tivo nations tvho engage in a contest., 
and have recourse to ar'tns." 

Wheaton lays down the law to the same effect. 
(Dana's ed., § 296.) 

And it has been expressly recognized and enforced 
by the Supreme Court of the United States in the 
Prize Cases, 2 Black's U.S. Rep., p. 638, in reference 
to the late rebellion. 

War, therefore, being the only possible solution of a 
controversy between one of the States and the Gov- 
ernment of the United States, involving absolute 
denial and violation of the duties and obligations of 
the State, — the only tribunal to which appeal for 
a final decision could be made, — neither necessity 
nor propriety required that it should be set forth in 
the Constitution, as the means of determining the 
issue made between them, any more than they would 
require the statement in a civil contract, that, if either 
should fail to fulfil the obligation which it imposed 
upon him, the other should have the riglit to appeal 
to a judicial tribunal for redress. 



POWERS OF GENERAL GOVERNMENT. 45 

In this case, both parties did thus appeal to the only 
and ultimate tribunal between contending States, and 
took upon themselves respectively the consequences 
of its judgment. 

If that judgment had been in favor of the confed- 
erate States, the sovereignty, independence, and right 
of secession which they asserted, would have been 
vindicated, and finally adjudged to them, as matter of 
future indisputable right. And the United States 
would not only have been bound by tliat decision, but 
might also have been justly, by the law of nations, 
compelled to enter into such stipulation, and give such 
security, as the confederate States might reasonably 
exact, to prevent the United States from ever there- 
after re-asserting claims to their allegiance or obedi- 
ence. But the judgment was against them, and a 
corresponding just right accrued to the United States, 
not only to enforce obedience to the duties imposed by 
the Constitution, and keep the confederate States 
under military control until the peaceful fulfilment of 
them could be relied upon ; but also to require full 
indemnity for the wrongs and losses caused by the re- 
bellion, including payment of the debt incurred in 
suppressing it, if the confederate States could re-im- 
burse tlie amount of it, and any security which reason 
and justice might show to be necessary to prevent 
any future perpetration of the crime. 

But the powers of the United States, as victors in 
such a contest, are by no means as unlimited as they 



46 RECONSTRUCTION. 

might be in a war with another nation of acknowl- 
edged independence. They cannot be considered as 
extending to the absohite subjection and permanent 
control of the confederate States as conquered terri- 
tories, nor to the imposition of any such unqualified 
terms, conditions, or exactions as the exercise of more 
sovereign will and power might justify in such other 
war. 

The power to wage war upon a State in rebellion, 
for the preservation of the Union, is a constitutional 
power necessarily invested in the Government solely 
for that purpose, and limited by that necessity. It 
cannot, therefore, be exercised for any other end, nor 
beyond the means justly and reasonably required for 
its accomplishment. It cannot justify the holding of 
the territories of the State as conquered or as prov- 
inces under military rule, or the depriving them of 
the rights of civil government, or of their previous 
constitutional privileges, any further than may be 
necessary to enforce present obedience to the Consti- 
tion and the laws, and for security against danger 
of future like disobedience or revolt. But so far as 
tlie attainment of these ends may render the occupa- 
tion and government of the State by military rule, 
or the withholding of any civil rights and privileges, 
essential, so far the right of such occupation, govern- 
ment, and authority is as obviously and indisputably 
justifiable as was the right of waging the war to ob- 
tain those ends. And, as above stated, the Govern- 



rOWERS OF GENERAL GOVERNMENT. 47 

ment, as the victor, must, by the necessity of the case, 
be the sole judge of such necessity and of the proper 
security to be demanded ; being governed in the exer- 
cise of its discretion by the hmits of constitutional 
authority, as above stated. 

This view, it is believed, furnishes a satisfactory 
answer to the insensate clamor raised against the ad- 
vocates of the powers of the General Government as 
founded upon tlie rights of war, and by which dema- 
gogues and sympathizers in rebellion have attempted 
to darken the understanding of the people, and lead 
them to believe that the assertion of such powers is 
nothing short of advocacy of an usurpation, tram- 
pling the Constitution under the heel of military des- 
potism, instead of being, as it truly is, a vindication 
of the only means which the Government possesses of 
self-preservation, and for maintaining the Constitution 
and the life of the nation secure against future like 
outrage and danger. 

It surely cannot be pretended with any show of 
reason, that the States recently in rebellion could be- 
come entitled to immediate restoration of their former 
political powers and privileges, merely upon the lay- 
ing-down of their arms and professions of submission 
to the Constitution and the laws, if it should be 
satisfactorily apparent that such surrender and pro- 
fessions were a mere subterfuge in order to obtain a 
suspension of hostilities with the intention of renew- 
ing them at a more favorable opportunity, or if they 



48 RECONSTRUCTION. 

were made with the view of using those political 
powers and privileges as the means of accomplishing 
in another mode the same purposes for which they 
had been waging the war. 

This would he to render the contest, and the victory 
purchased at such cost of life and treasure, barren 
and worthless indeed. Obvious justice and the hum- 
blest common sense alike dictate that the right to 
secure peace and future security, the only desired 
fruits of the conflict, is no less clear than the right to 
fight for them ; and that, if it was humane and just 
for the nation to enter upon the war and sacrifice the 
lives of such hecatombs of the best and bravest of her 
sons and such incalculable treasure to protect the 
Constitution and the Union from violation and dis- 
ruption, it can be no less humane and just to exact, 
as the condition of restorins: her rebellious children 
to their former political powers and privileges under 
them, reasonable security against the repetition of the 
crime, whether in the field of battle or in the halls 
of legislation. 

Nor in this connection is it to be forgotten, that the 
potitical powers and privileges to which immediate 
restoration is thus claimed are not any which the 
(jovernment of the United States has voluntarily 
taken away from the rebel States, either as punish- 
ment for tlieir offence or as indemnity for the future ; 
but are those only which they themselves deliberately 
and wickedly cast away, repudiated and abandoned, 



POWERS OF GENERAL GOVERNMENT. 49 

in perpetration of the blackest and most fearful crinio 
known in human society, — the blackest and most 
fearful, because involving, not only the breach of the 
most solemn obligations, but of necessity also the 
ruin of numberless happy families, the sacrifice of 
hosts of precious lives, the loss of countless treasures 
of national wealth and industry, — the crime of par- 
ricide against the most humane and parental govern- 
ment the world ever looked upon, against which they 
could not allege one instance of wrong or oppression ; 
the crime of fratricide, involving the shedding of tor- 
rents of brothers' blood, the making desolate of hun- 
dreds of domestic hearths, and the shrouding of 
thousands of homes in mourning to terminate only in 
the grave. Surely, it is not for those guilty of crimes 
like these, with hands stained with the blood of their 
victims, and their hearts and mouths full of bitterness 
and hatred of those who upheld the Constitution 
and the laws in this terrible strife, arrogantly to de- 
mand immediate restoration of the powers and privi- 
leges so impiously trampled under foot, that they may 
resume their former unhappily paramount influence 
and power in the councils of the nation whose life 
they have thus sought to destroy ; nor to resent as an 
insult the requisition of those whom they have thus 
cruelly and grievously wronged, that some security be 
given against the repetition of their crime. 

Suppose, that, in the war of the revolution, England 



50 RECONSTRUCTION. 

had been successful and conquered the revolting colo- 
nies, and re-assumed her territorial powers and juris- 
diction over them. What question could there be of 
her power to impose such terms as she should think 
proper, for restoration to them of their previous colo- 
nial rights under their charters, notwithstanding that, 
upon the laying-down of their arms, they were indi- 
vidually restored to the rights of citizenship until con- 
viction of treason by process of law 1 

Or if a large portion of the inhabitants of any one 
State, composing entire counties or districts entitled 
to representation in the legislature, should rise in 
rebellion and expel the State government from these 
territories, carry on civil war, finally terminating in 
their subjection, what reasonable doubt could exist of 
the right to take possession of those territories, and 
hold them until peace and order should not only be 
presently restored, but also made reasonably perma- 
nent, by continuing the force necessary for that pur- 
pose so long as such necessity should continue, or 
until guaranties should be given such as to render it 
needless ; the individual citizens meanwhile being left 
in the ordinary enjoyment of all their civil rights, 
excepting those only of representation in the State 
government ? How can the war be said to be finally 
terminated until absolute security is obtained 1 

And upon what principle can like authority be 
denied to the Government of the United States over 



POWERS OF GENERAL GOVERNMENT. 51 

inhabitants of the States under its authority, until 
peace and the security for life, hberty, and property 
of all loyal citizens within their borders shall be 
secured, leaving to such inhabitants the enjoyment of 
all other civil rights but those which entitle them to 
take part in the Government '? 

The principle so confidently maintained, that the 
inhabitants of the rebel States, upon the laying-down 
of their arms, became at once restored to all their po- 
litical rights as States, as well as their former civil ones 
as citizens, until convicted of treason, involves the 
palpable and enormous absurdity that they are thus 
restored, although such surrender was not only en- 
forced upon them and was altogether involuntary, as 
is the truth here, but was with intent of resuming 
their hostile attitude again as soon as they could 
gather strength for the purpose, and although the 
danger of such resumption was palpably imminent, 
and although, in the mean time, they were perpetrating 
upon loyal citizens atrocious cruelties, from which the 
ordinary protection of civil law was entirely inade- 
quate, and evinced a settled determination to continue 
such perpetration. The case need but be stated to 
make its absurdity self-evident. 

Upon the principles of public law, therefore, appli- 
cable, to this extent, to civil as well as to foreign 
war, as founded in the absolute necessity of the case, 
the General Government has the sole power and the 



52 RECONSTRUCTION. 

rio-ht to determine when the conflict has ceased, and 
upon what terms and conditions, consistent with the 
objects of the war, the inhabitants of the States in 
rebellion shall be restored to political equality as 
States in the Union. 



POLITICAL RIGHTS AND PRIVILEGES. 53 



CHAPTER V. 

POLITICAL RIGHTS AND PRIVILEGES OF REBEL STATES 
FORFEITED AND LOST. — RESTORATION MUST BE BY 
ACT OF GOVERNMENT. — LAW OF SELF-PRESERVATION. 

But independently of the right of the General Gov- 
ernment to prescribe the conditions upon which the 
inhabitants of the rebel States may be restored to 
equal political privileges with the other States under 
the Constitution, as one resulting from the war, there 
are several other grounds upon which, as is believed, 
it may be satisfactorily vindicated. 

As the Constitution contains no express provisions 
determining the status of the inhabitants of a State 
in rebellion, or their right to restoration of political 
privileges as a State under the Constitution, after 
subjugation or submission to the authority of the 
General Government, such restoration is necessarily 
one of construction, or implied right or power, to be 
settled upon general principles. And the proposition 
which first suggests itself is that the power of decid- 
ing upon the right of such restoration, and upon the 
terms of it, resides in the General Government as mat- 
ter of absolute and inevitable necessity. 

The Constitution is the supreme law. and the Gov- 



54: RECONSTRUCTION. 

ernment established by it was for the purpose of car- 
rying that law into effect. The Government is the 
sole agent of the people for this purpose, and so has 
supreme authority to decide every question arising 
under it, in the particular modes pointed out by the 
Constitution where such questions admit of their 
application, and by its own action where none such 
are provided. The Government represents the whole 
people of the United States in all matters of law 
arising under the »Constitution, as in all other things 
provided for by it; and has not only the power, but 
is under the obligation, " to provide for the common 
defence and general welfare of the United States," 
and " to make all laws which shall be necessary and 
proper for carrying into execution the foregoing power, 
and all other powers, vested by the Constitution in 
the government of the United States." 

The nature of the political relations of the several 
States to the United States is obviously pure matter 
of law. Any question concerning the violation or 
forfeiture of them, or the right of restoration to them 
if lost or forfeited, is also a pure question of law, 
and one which must of necessity be decided. All 
these and cognate questions are not outside of the 
Constitution, but are questions under it, affecting its 
existence and the existence of the Union, and must 
be decided: the nation's life is at stake upon them. 
If, then, no other tribunal has been appointed for 
their decision, the General Government has supreme 



I 



POLITICAL RIGHTS AKD PRIVILEGES. 55 

authority to decide tliem : or, if they are of a nature 
to be ultimately decided by the Supreme Court, still 
the present decision, for the time being, until the 
question can be brought before that tribunal, if it 
ever could be, must be by the General Government ; 
for a present decision one way or the other by it must 
be made. Inaction is as much a decision against the 
right, as action is one in favor of it. It has therefore 
the final, or, if not the final, the immediate right of 
decision ; and such decision is its present first duty 
under the clauses above stated. No one will dispute 
that the settlement of these questions is essential to 
" the common defence and general welfare of the 
United States." N^o one can question that Congress 
is invested with full powers to " provide for that 
defence and welfare." And no one can point out any 
other tribunal by which the nature of them can be 
adjudged, and the proper remedy applied. 

The action of Congress, therefore, seems not only 
justifiable, but an absolute necessity. All these ques- 
tions being obviously matters of legal right, — of law 
purely, — the decision and the provision for them 
must of like necessity rest with the law-making 
power, — that is, the Congress, — or with the judiciary 
And nothing can seem more manifestly in contradic- 
tion to all legal principle, or a plainer usurpation, 
than for the executive department of the Government, 
whose office is confined to the administration of the 
law, to assume the right of deciding upon the nature 



56 RECONSTRUCTION. 

of those relations and the manner of their restora- 
tion. 

The next proposition is, that State rights, being 
corporate rights or privileges or franchises only, be- 
longing to the States as subjects of the national Gov- 
ernment, and being lost or forfeited by their rebellion 
against it, never could revert or be recovered by their 
subjugation or submission; but any restoration of 
them must bq, by a grant from the sovereign power 
which created them. 

State rights and powers are such, and such only, 
as were granted, defined, or recognized by the Con- 
stitution. The States are in no sense sovereign 
under it, nor are they in any part of it styled or rec- 
ognized to be such. They have no right to decide 
any question under it in the last resort, but are always 
amenable and subject to the final decision of the 
General Goverment upon it. In certain cases they 
may sue and be sued, and in such cases must submit 
to the judgment of the supreme judicial authority, like 
any other subject. They are component parts of the 
nation as " bodies politic," or " corporate bodies," or 
"political societies" as Mr. Madison styles them, in the 
same manner as individual citizens are component 
parts of it. However distasteful the truth may be to 
the magniloquent advocates of State rights, the truth, 
nevertheless, is, that the States are subjects of the Gov- 
ernment estabhshed by the Constitution, and bound 
by the law in the same manner as other subjects. 



POLITICAL RIGHTS AND PRIVILEGES. 57 

The right of representation in Congress, and so to 
participate in the administration of the General Gov- 
ernment, was not one belonging to them in their 
original capacities when the Constitution was formed, 
nor one created by them as the framers of the Con- 
stitution. It was one conferred upon and granted 
to them by the whole people of the United States, in 
the formation of that frame or structure of govern- 
ment. The i^eoiple of the United States was the 
gra)itor, and the several States respectively were the 
grantees, of that right. It was not one which they 
had the power to lay down and re-assume at pleasure. 
Such a principle would be obviously destructive of 
a government created for the ruling and preservation 
of a nation ; but the right was given and made de- 
pendent upon the existence and fulfilment of certain 
relations and conditions prescribed by the Constitu- 
tion, and in. such manner that it could not exist unless 
they were complied with. 

These rights, then, were merely corporate rights, 
belonging to the States only as political corporations 
or societies, and implying corresponding allegiance 
and obedience to the Government from which they 
were derived, in the same manner as do the rights 
and privileges of any other corporations created by a 
civil government. And it is not perceived why they 
may not be lost and forfeited by misuser or nonuser, 
in the same manner as may be any other corporate 
rights created by such governments. Nor is it seen 



58 RECONSTRUCTION. 

why Congress might not, m the exercise of its 
supreme power of deciding or providing means for 
deciding all questions of law arising under the Con- 
stitution, have provided a mode of trying and deter- 
mining questions, like the present, concerning the 
forfeiture or loss by States of their political rights 
and franchises under it. 

No such tribunal, indeed, could be necessary in an- 
ticipation of flagrant rebellion and civil war, in which 
such civil rights and privileges would be not only 
renounced and abandoned, but the wealth and 
strength derived from their enjoyment and the or- 
ganization on which they were founded, were to be 
the chief means of sustaining the contest against the 
Government which created them. Such rebellion and 
war, as has before been shown and seems to be self- 
evident, is, of necessity, a destruction of any corporate 
rights or franchise under the Government thus assailed 
by the corporation itself And, no other tribunal 
having been established to pass in judgment upon 
such forfeiture or destruction, the power of doing so, 
if any judgment were needed, necessarily resides in 
the Government itself in political as well as in legal 
questions. 

Another ground upon which these political rights 
may be accounted as forfeited or lost is, that, as above 
shown, they were granted upon condition of the con- 
tinued existence of certain prescribed relations to the 
United States and obedience to the Constitution and 



POLITICAL RIGHTS AND PRIVILEGE^. 59 

the laws ; and, that condition having been voluntarily 
and entirely broken, they were by the terms of the 
grant, and the principle universally recognized in 
continuing grants upon conditions, totally and irrevo- 
cably forfeited and lost. And, being so forfeited or 
lost, every principle and analogy of civil law and ol[ 
common sense dictates that restoration of it must 
depend upon the assent of the other party ; namely, 
the people who granted it, and who, for all purposes 
of upholding the Constitution and protecting the life 
and welfare of the nation under it, are represented by 
the General Government, which is invested with 
plenary and final power to determine all questions 
arising under it. 

All analogy sustains this view of the subject. In 
all cases of contract, founded upon conditions, breach 
of the conditions is finally fatal to all rights under it, 
and their restoration could only be obtained by re- 
mission of the forfeiture by the other party. So, in 
cases of treason once committed, no penitence, no 
proffered return to allegiance, no obedience however 
entire, can wash away the crime : pardon from the 
government whose authority was violated can alone 
restore the guilty party to immunity in his former 
civil rights of property, liberty, and life. And it 
would be strange indeed, if criminals thus under the 
ban of the law, as having forfeited all their personal 
rights, including that of life itself, may still retain, 
in their political corporate capacity as a State, their 



60 - RECONSTRUCTION. 

privileges and power of participation in the adminis- 
tration of the government which they sought and 
may be still seeking to destroy, — strange indeed, that 
the government should be invested with full power 
to protect itself against danger from their treason as 
individuals by the extremest punishment, but have 
none whatever to protect itself against the infinitely 
greater danger resulting from treason in their politi- 
cal corporate capacities as component parts of itself; 
none to expel the most dangerous internal enemy, 
but must continue to maintain and nourish the viper 
gnawing at its heart. 

It is no answer to pretend that the law against trea- 
son subjecting every individual guilty to loss of life is 
a sufficient protection, as it may be administered to the 
extent necessary for preventing repetition of the crime ; 
for, however sufficient that defence might be in ordi- 
nary cases of insurrection or conspiracy by compara- 
tively few individuals acting in their individual 
capacities, it is utterly and obviously incompetent and 
futile in the case of a rebellion by the people, or a 
large majority of the people, of a State, acting in its 
corporate capacity. Such punishment at the utmost 
could be extended to a few only of those of most 
prominent influence, position, or criminality. It could 
never reach the mass of voters, who would be still left 
to the uninterrupted and practically unassailable 
enjoyment of their most important political rights, — 
and those not only the most dangerous, but, it may be, 



POLITICAL RIGHTS AND PRIVILEGES. 61 

the only ones by the exercise of which they could 
peril the safety of the Government and the peace of 
the nation. Upon such a theory, the Government 
would be utterly powerless to protect itself from the 
hostility of traitors red-handed from the battles of 
rebelhon, seeking to accomplish by political machina- 
tions the destruction they failed to accomplish on the 
field. It would seem that no merely technical con- 
struction of tlie Constitution, rendering the Govern- 
ment so feeble and incapable of self-protection, and 
for accomplishing the great ends of national unity, 
peace, and prosperity for which it was created, 
can be accepted ; but that the common sense and 
the instinct of self-preservation alike cry out against 
it. 

Again, if the theory referred to be sound; if the 
inhabitants of a State may thus rise in rebellion, and, 
after waging a bloody and costly war against the 
Government, may, by the mere laying-down of their 
arms and seemingly sincere professions of obedience, 
assert the absolute right of restoration to political 
station and power in the national administration, — it 
follows that the nation has no protection from revolt 
and national embarrassment or ruin beyond the mere 
pleasure of the inhabitants of any State, or number of 
States, to keep the peace; for if they may rebel, and, 
being conquered, may resume all their former rights, — 
or (to speak more properly according to the theory) 
if they have never lost any by rebellion, — it follows 



62 KECONSTRUCTION. 

that they may resort to this process, or the threat of it 
(which in many cases would be hardly less disastrous 
than the reality in a national point of view), whenever 
they might think it expedient to do so, for the pur- 
pose of obtaining some desired political end or ascend- 
ency, or of compelling the adoption of some especial 
local or national policy, with the certainty, that, while 
enjoying the chance of success, they could lose nothing 
if defeated, and with the possibility that even defeat 
might prove a gain, as in the present instance, where, 
upon their theory, they would be entitled to re-assume 
their former political rights, but with a vast increase 
of relative power in the Government. And such rebel- 
lion might be endlessly repeated with the like impu- 
nity, with the chances of gaining the desired end if 
successful, and the certainty of sustaining no loss of 
political power if defeated. The national Govern- 
ment, if of such a nature, would be little worth the 
blood and treasure it originally costs for its establish- 
ment, or a tithe of those recently expended in its 
preservation: it would be neither worth dying for 
nor living under. 

But there is another and broader view to be taken 
of this subject, in the light of the great principles 
upon which the Constitution was founded, and the 
great purposes for which it was created, extending far 
beyond any merely literal or technical rules of construc- 
tion as applied to written contracts or instruments in 
the ordinary business of life. 



POLITICAL RIGHTS AND PRIVILEGES. 63 

A constitution of national government demands 
more than mere obedience to rules of law founded 
upon do7nestic expediency, which renders their appli- 
cation to such instruments imperative and conclusive, 
often without much, if any, regard to the fundamental 
question of intention, or of right or wrong between 
the parties, or the purposes for which they were made ; 
and with none, if a technical rule can be found de- 
cisive of the question. Such rules are of inevitable 
necessity in the multifarious relations and commerce 
of individual life, and, in the long-run, subserve the 
cause of justice. 

But a contract creating a nation, and designed to 
secure and perpetuate the internal and external peace 
and welfare, and to preserve the life of a nation, calls 
for very different rules of construction. The founda- 
tion principles of self-preservation and of essential 
security for the great objects of the compact, must 
have controlling influence over all other principles, if 
in conflict with them, when applied to any issue in 
which they are mvolved. 

This principle of self preservation is fully recog- 
nized as one of established law in all civilized com- 
munities. A man, to save his own life, may destroy 
the life of another, although innocent of any wrong to 
him ; as in the familiar illustration of two men upon a 
plank at sea sufficient for the safety of one, but not for 
both. Either may justifiably repel the other from it, 
if the instinct or duty of self-preservation be not over- 



64 RECONSTRUCTION. 

ruled by higher motives. And it applies with infinite- 
ly more force, and with no possible qualification, 
where a national government is called upon to vindi- 
cate its existence, the destruction of which must involve 
incalculable losses of life and of every thing that 
makes life worth having. 

Now, the Constitution of the United States was a 
compact entered into by the inhabitants of the United 
States for the declared purpose of erecting and main- 
taining " a firm national government," under which 
they were to be united as one people, owing to it 
individual allegiance as citizens of one nation, and 
which was designed to possess all the powers of inter- 
nal and external sovereignty requisite for securing to 
them internal and external peace, security, and pros- 
perity ; and any construction of it, therefore, which 
renders it manifestly inoperative to accomplish these 
fundamental objects, or incapable of resisting inter- 
nal or external assaults upon its life, cannot be 
accounted the true or just construction, however 
plausibly its vindication may be attempted by literal 
interpretations of particular provisions, or specious 
arguments founded on the omission of others, or any 
technical rules of construction, ordinarily applied to 
written contracts in private life. 

The nation, as history abundantly shows, existed as 
a nation before the Constitution was formed. The 
nation created the Constitution, not the Constitution 
the nation. It constructed that national compact for 



POLITICAL RIGHTS AND PRIVILEGES. 65 

the more perfect definition and distribution of the 
various rights and powers which its citizens possessed, 
or were intended to possess, in then- individual capa- 
cities and in their corporate capacities as States ; and 
to establish a form of government that should be 
competent to protect them in the enjoyment of those 
rights and the exercise of those powers, and to secure 
to them the blessings of "a firm national government" 
able to protect them at home and abroad, and to pre- 
serve their national unity from destruction by foes 
within or foes without. And to give an instrument 
designed for these purposes a meaning which renders 
it not only powerless to accomplish them, but fur- 
nishes to enemies within the direct means of under- 
mining and destroying the authority of the Government 
which it was designed to create and preserve, or to 
construe it as susceptible of any such use or abuse, 
or as wanting in any essential power of self-protec- 
tion, is to sacrifice the substance to the form, and per- 
vert a compact intended for the preservation of the 
nation's life into one for its destruction. 

The Government, formed by the Constitution, rep- 
resents the nation in every thing pertaining to it as a 
nation. Its life is the life of the nation. And it not 
only has the right, but is, on every principle of duty, 
bound, to protect that life at all costs and all hazards ; 
and for that end to exercise other powers than those 
expressly given by the Constitution, if manifestly 
necessary for that end, upon the obvious principle 



66 RECONSTRUCTION. 

that the possession of such ultimate power of self- 
preservation was necessarily implied in its creation. 

In the language of the Report of the majority of 
the Committee on Reconstruction, which every one 
desiring to understand the subject should know by 
heart, — 

" It is more than idle, it is a mockery, to contend 
that a people who have thrown off their allegiance, 
destroyed the local government which bound their 
States to the Union as members thereof, defied its 
authority, refused to execute its laws, and abrogated 
every provision which gave them political rights within 
the Union, shall retain, through all, the perfect and 
entire right to resume at their own will and pleas- 
ure all their privileges within the Union, and espe- 
cially to participate in its Government, and to control 
the conduct of its officers. To admit such a princi- 
ple for one moment would be to declare that treason 
is always master, and loyalty a blunder. Such a prin- 
ciple is void by its very nature and essence, because 
inconsistent with the theory of government, and fatal 
to its own existence." 

Upon every principle, therefore, of public law ap- 
plicable to a condition of peace or war; upon any 
reasonable construction of the Constitution in refer- 
ence to the relations of the inhabitants of the several 
States, and of those States to the national Govern- 
ment which it created and defined ; and upon the fun- 
damental principles of interpertation applicable to 



POLITICAL RIGHTS AND PRIVILEGES. 67 

civil or national compacts, — it is believed that no rea- 
sonable doubt should exist that the inhabitants of the 
States recently in rebellion, by that act forfeited, 
abandoned, or lost their political rights or representa- 
tion in Congress, and at the close of it, by their en- 
forced surrender, were, in the language of that report, 
" disorganized communities, without civil government, 
and without constitutions, or other forms by virtue 
of which political relations could legally exist be- 
tween them and the Federal Government." The 
vast majority of them were criminals who had vio- 
lated their allegiance, forfeited all rights civil or po- 
litical, including those of liberty and life itself, holding 
them only at the mercy of the Govenrment which 
they had thus outraged and defied, but to whose power 
they had been compelled unwillingly to submit. 

And consequently that they could be re-instated in 
their political rights only by the assent of the Gov- 
ernment which represented the nation, and is fully 
empowered to do all things needful for the preserva- 
tion of the Constitution and the Union, and the res- 
toration of the people to unity and the enjoyment of 
political privileges under them. 



PAKT seco:n^d. 



CHAPTER I. 

EEPLY TO THEORIES AND ARGUMENTS ADDUCED IN 
SUPPORT OF THE PRESIDENT'S POLICY. — ALLEGED 
DESTRUCTION OF STATES BY IMPOSING CONDITIONS 
OF RESTORATION. 

It having been attempted, in the previous article 
upon this subject, to maintain affirmatively the right 
of Congress to impose upon the people of the rebel 
States terms or conditions of restoration to their 
political power and privileges as States in the Union 
under the Constitution, a just treatment of the sub- 
ject demands consideration also of the position 
taken, and arguments adduced, in defence of the 
opposite theory, usually designated as the President's 
policy. 

These are to be found in the Report of the minor- 
ity of the Peconstruction Committee, the Address of 
the Philadelphia Convention of August, and the 
recently published letter of a gentleman, of national 
celebrity as a lawyer, whose acknowledged claims to 



70 RECONSTRUCTION. 

general confidence and respect give very great weight 
to his opinions upon a subject like the present, and 
invest them with much of the force of judicial 
authority. 

The principal positions and arguments contained 
in the Ecport and Address referred to, it is believed, 
have been substantially met and answered by those 
taken in the preceding article, maintaining the right 
of Congress to impose such terms and conditions, — 
the antagonism between them being so direct and 
obvious as to render those on either side subversive 
of those on the other, according to the convictions 
produced in the mind of the reader ; although some 
of them will receive further consideration below. 
The letter, however, referred to as containing an able 
epitome or summary of the whole matter, with some 
new and original view^s, — and as having great and 
wide influence in this vicinity, if not far beyond it, — 
seems to demand a more careful and direct answer. 

There would be several reasons w4iich might pre- 
vent the writer of this article from entering upon the 
task, if such answer were to be taken alone, as a 
reply merely to that letter, and thus to place him in 
seeming voluntary antagonism to a personal friend. 
But personal reasons can no longer control when 
such reply becomes an unavoidable duty, as a neces- 
sary portion of a humble effort to defend or uphold 
a principle of government which he deems essential 
to the salvation of his country from despotism or 



THE president's POLICY. 71 

anarchy, to the blink of which he sadly but pro- 
foundly believes her to be now brought by the course 
pursued by the national Executive. 

The object of the letter is to sustain the President 
in the theory he has adopted, that the inhabitants of 
the States recently in rebellion (and which for brevity 
will be denominated " the rebel States ") are lawfully 
entitled to the immediate restoration of their former 
political rights and powers in the administration of 
the national Government, upon the determination or 
fiat of the executive head of the Government that 
the rebellion has ceased, and that the authority 
of the Constitution and the laws of the United States 
have been re-established among them ; and to over- 
throw the contrary doctrine maintained by Congress, 
that the Government, in its legislative capacity, alone 
has the right and power of determining when such 
restoration shall take place, and of prescribing such 
terms and conditions of it as may be deemed neces- 
sary for the protection and future peace and security 
of the country. 

Starting with seemingly very simple postulates or 
propositions, — so simple, indeed, as to have the 
appearance of mere truisms, but which, it is believed, 
have no substantial application to the case in 
hand, — the letter proceeds to draw from them the 
desired conclusions; and, having accomplished this by 
way of general argument, it finally startles us with a 
novel and specious construction of the Constitution, 



72 RECONSTRUCTION. 

investing the President with the omnipotent authority 
he claims, — a construction beUeved to be entirely 
original, and which, if maintainable, entitles the 
author to the profound gratitude of that functionary, 
and of all worshippers of the " one-man power." So 
that, after the perusal of the letter in the usual man- 
ner in which papers of this sort are read, one might 
naturally lay it down in a sort of dreamy conviction 
that the President's policy is vindicated by the 
simplest and clearest of demonstrations, " which he 
who runs may read." 

It is proposed, however, more carefully to examine 
the premises, and the conclusions justly deducible 
from them, if they can be applied to the existing 
facts. And, upon such examination, it is believed 
that the author of the letter, and Congress, will be 
found to be much nearer to each other in ultimate 
opinion, as founded upon general principles, than he 
seems to imagine ; and that the great difference 
between them will rest mainly on the novel construc- 
tion of the Constitution alluded to, which will also be 
examined, and with great confidence that it has no 
solid foundation. 

Before proceeding, however, to these matters, it 
may be well here to record two most essential princi- 
ples conceded by the author, lying at the founda- 
tion of the position taken by Congress, and which, in 
a justly comprehensive application of them, it is 
thought go very ftir (if not entirely) to overthrow 



THE president's POLICY. 73 

the argument he has attempted to raise upon the 
postulates referred to. 

The first is that of the unquestionable authority 
and right of the Government to subdue the rebellion 
by force of arms, laid down in these words : — 

" The Government of the United States may and must, in the 
discharge of its constitutional duty, subdue by arms any number of 
its rebellious citizens into quiet submission to its lawful authority. 
And if the officers of a State, having the actual control of its 
Government, have disobeyed the requirements to swear to support 
the Constitution, and have abused the powers of the State, by mak- 
ing war on the United States, this presents the case of an usurping 
and unlawful Government of a State, which the United States may 
lawfully destroy by force ; for, undoubtedly, the provision of the 
Constitution, that the United States shall guarantee to every State 
in this Union a republican form of government, must mean a 
republican form in harmony with the Constitution, and which is so 
organized as to he in the Union." ^ 

The second, and of no less importance, is that the 
Government of the United States alone has the 
power to decide when the time has come for the res- 
toration of the inhabitants of the rebel States to their 
political rights and powers as States in the Union. 
This principle is thus laid down : — 

" And if the preservation of the States within the Union was 
one of the objects of the war, and they can be preserved only 
by having republican governments organized in harmony with the 
Constitution, and such government can be organized only by the 
people of those States, then, manifestly, it is not only the riglit, but 
the constitutional duty, of the people of those States to organize 

1 All italicizing is by the writer of this article, unless it be otherwise 
stated. 

10 



74 RECONSTRUCTION. 

such governments, and the Government of the United States can 
have no vightful authority to proliibit tlieir organization. But this 
right and duty of the jwoph of the several Slates can onJij begin 
when vmr has ceased, and the airfhorifi/ of tlie Consliltition and the 
laws of the United States has been restored and estahlisltcd; and, 
from the nature of the case, the Government of the United States 
must determine \ohen that time has comeT 

Now, these two propositions embrace substantially 
all tliat is claimed by Congress and its supporters ; 
the question "when the war has ceased, and the au- 
thority of the Constitution and the laws of the United 
States has been restored and established," — being, as 
is at once perceived, of very broad scope, — compre- 
hending other most material considerations besides 
those of the mere laying-down of arms and formal 
submission to that authority. 

The war cannot, with any pretence of reason, be 
considered to have ceased, nor the authority of the 
Constitution and the laws to have been restored and 
established, if the surrender and professed submission 
were formal merely, or intended to endure only so 
long as their enforcement could not be successfully 
opposed ; nor if future resistance were designed of 
any kind ; nor so long as the rights and privileges 
of all citizens of the United States under the Consti- 
tution and the laws could not be fully vindicated and 
secured by the impartial and faithful administration 
of justice in the courts of those States and of the 
United States. And, if it is lawful and just to with- 
hold from these States the restoration of political 



THE PRESIDENTS POLICY. 75 

rights and power in the administration of the national 
Government until these ends shall have been accom- 
plished (as is thus conceded), it is not perceived why 
it may not be equally laAvful and just to propose and 
require of them the fulfilment of reasonable condi- 
tions, by which such restoration may safely be made 
immediate. If the people of those States prefer the 
delay to accepting of the conditions, it is their 
own choice, and they can have no just cause of 
complaint. 

From these two principles or propositions above 
cited, and the further one stated in the letter, that the 
only rightful objects of the war — 

" are not the destruction of one or more States, but their preserva- 
tion ; not the destruction of the Government in a State, hut the 
restoration of its government to a republican form of (/overnment in 
harmony with the Constitution" — 

the further conclusion is logically inevitable, that 
during the rebellion, and until such re-organization, 
the inhabitants of those States did not compose States 
in the Union under the Constitution, and were not 
entitled to any political power and privileges as such ; 
although such inhabitants continued to be within the 
Union as citizens of the United States, and subject to 
the authority of the national Government. And upon 
these three concessions or postulates, — namely, that 
the Government of these United States might rightfully 
subdue the people of the States in rebellion by force 
of arms; that such people during the rebellion, and 



76 RECONSTRUCTION. 

until the authority of the Constitution and the laws 
was restored and established, did not compose States 
under the Constitution, and had no right nor power to 
organize themselves into such States ; and that the 
Government of the United States is the rightful 
judge of the time when such authority has been 
restored and established, and such re-organization 
may take place, — it is believed that the claims of 
Congress might safely be rested, as substantially 
controlling all the other positions taken in the let- 
ter, saving that of the new construction above al- 
luded to. 

But the specious logic of the letter requires, per- 
haps, a more critical examination of the premises 
and mode of argument adopted in defence of the 
President's policy, and in opposition to the claims of 
Congress. 

Of the premises or postulates, the first in order is 
in these words: — 

" The nature of our Government does not permit the United 
States to destroy a State, or acquire its territory by conquest." 

The second is as follows : — 

" Neither does it permit the people of a State to destroy the 
State, or lawfully affect in any way any one of its relations to the 
United States." 

And both are said to be equally inconsistent with 
the Constitution. In another place, the first premise 
is stated thus : — 

" But neither the power and duty of the Government of the 



THE president's POLICY. 77 

United States to subdue by arms rebellious people in the territorial 
limits of one or more States, nor its power and duty to destroy a 
usurping Government de facto, ean possibly autliorize the United 
States to destroy one of the States of the Union, or, lohat must 
amount to the same thing, to acquire that absolute right over its 
people and its territory tvhich restdts Jrom conquest in a foreign 
war." 

Now, these premises, taken in their literal and 
seemingly natural meaning, are simple and undenia- 
ble, excepting the assertion that to exercise the 
rights of conquest over the inhabitants of a rebellious 
State, subdued by force of arms of the Government 
of the United States, is the same thing as the de- 
struction of the State by that Government, which will 
presently be considered. No one ever pretended that 
the Government of the United States, acting within 
its constitutional limits, could voluntarily destroy a 
State, or could voluntarily assent to the withdrawal of 
a State from the Union, or to the alteration of any 
of her constitutional relations to it. And, if these 
premises are to be thus understood, it is obvious that 
they have no relevancy to the case under considera- 
tion. But it is impossible to believe this to be their 
intended signification. To give to them any reason- 
able interpretation, as applicable to any issue before 
the country, they must be construed as implying and 
intended to signify, that any terms imposed upon the 
people of the rebel States as conditions of their res- 
toration to the privileges of States in the Union, be- 
yond those of present submission to the authority of 



78 RECONSTRUCTION. 

the Constitution and the laws, is virtually the destruc- 
tion of those States, or can be rightfully enforced 
only upon the hypothesis that the Government of the 
United States has accomplished that destruction by 
becoming their conquerors in war. 

This mode of reasoning, usually founded by its au- 
thors on representations or implications that the Gov- 
ernment was the aggressor which inaugurated the 
war, and was pursuing it for the conquest of the rebel 
States and their subjugation to its authority, — and 
which gives a corresponding bias to all their argu- 
ments and hypotheses, — however unconsciously 
adopted, is nevertheless believed to be founded upon 
an entire misconception or erroneous supposition of 
the facts as really existing, not to say on one the 
entire reverse of the truth. 

No one can honestly deny, that the war was origi- 
nally inaugurated, declared, and carried on by the 
people of the rebel States in pursuance of a long- 
cherished design to dismember the Government of the 
United States, to destroy the Union, and to erect a 
huge Southern slave empire on a portion of its ruins; 
and that the Government of the United States, from 
the beginning to the end of it, was acting purely and 
solely on the defensive, to save itself and the Union 
from destruction, according to the duty imposed upon 
it by the Constitution ; and that so far from its hav- 
ing been instrumental in the destruction of those 
States, or of any of their relations to the Union, or 



THE president's POLICY. 79 

seeking any such destruction, its sole object has been 
to save them from it. 

It is true, that their relations to the Union, as 
States under the Constitution, have been destroyed. 
But that destruction was the work of their own hands, 
not that of the national Government. It was they 
who, repudiating the Constitution and authority of 
the United States, abolishing their former govern- 
ments established under them, sundering all the 
relations which could constitute them States in the 
Union, and establishing a foreign and hostile govern- 
ment, waged open war upon the Government of the 
United States to accomplish its destruction. And is 
it not, in the face of these facts, a marvellous per- 
version to talk of them as being destroyed, or of 
their destruction as being sought by that government'? 
Or to say that any thing which the Government has 
done, is doing, or can do, renders it in any degree 
accountable for their destruction 1 Is it not undenia- 
ble, that they themselves, alone, have been guilty of 
the most criminal self-destruction as States under the 
Constitution ? that they have died by their own hands, 
and not by the hands of the United States'? and that 
all which is left for the United States to do is to aid 
in their resurrection from the graves dug by them- 
selves 1 

It is in the light of these facts that we are to judge 
of the justness of the position above referred to ; 
namely, that for the Government of the United States 



80 RECONSTRUCTION. 

to acquire that absolute right over the people of a 
State and its territory which results from conquests 
in a foreign war is the same thing as to destroy the 
State. This word " State," as used in this connection, 
in order to have any sensible meaning, must be con- 
strued to mean a State under the Constitution, and 
preserving its constitutional relations to the Union. 
And how, after the people of it have themselves 
destroyed it, and the Government has conquered them 
in a long and bloody war, the exercise of any rights 
of conquest in order to compel them to return to 
their allegiance, or to make it secure from future 
violation, is the same thing as destroying it, is not 
clear to every comprehension. If it was already 
destroyed, as such a State, by its own people, the 
rights of conquest could add nothing to such destruc- 
tion, however exercised ; and surely not, if exercised 
solely for its restoration. 

Tliese premises therefore, it is believed, may be 
laid aside as being either irrelevant to any question 
in issue, or, if susceptible of any seeming relevancy, 
being so only upon the assumption or supposition of 
facts having no existence. 



POWERS OF CONGRESS. 81 



CHAPTER II. 

ASSERTED CONSTITUTIONAL LIMITS TO POWERS OF CON- 
GRESS.— THEORY THAT THE PEOPLE OF THE LATE 
REBEL STATES ARE ENTITLED TO COMPLETE IMME- 
DIATE RESTORATION. 

But the position doubtless mainly relied upon in 
denial of the right of Congress to enforce any terms 
upon the inhabitants of the rebel States as condi- 
tions of restoration, is, that the right of the Govern- 
ment of the United States to subdue the rebellion 
was a constitutional right, which can be lawfully ex- 
ercised only " within the limits of the powers con- 
ferred hy the Constitution ;'' and that this right is 
thus confined to the subjugation of the rebellion, and 
the restoration and establishment of the authority of 
the Constitution and the laws of the United States 
in tlie rebellious territories ; and that, when such 
restoration and establishment have taken place, — by 
whatever means, — the inhabitants become ij^so facto, 
as matter of right, entitled to re-organization as States 
under the Constitution, and to the immediate enjoy- 
ment of their former political powers and privileges 
conferred by it; and hence, that no terms of indem- 
nity for the past or security for the future, however 

11 



82 RECONSTRUCTION. 

mild or generous, or however reasonable, can be 
exacted. 

Now, admitting the theory to be true that the right 
of the Government to subdue the rebellion was a 
strictly constitutional right, and to be exercised solely 
for the purpose of restoring and re-establishing the 
authority of the Constitution and the laws in the rebel 
States, and of bringing them into the fold of the 
Union, — it is not perceived where any limits are pre- 
scribed by the Constitution, or by what course of 
reasoning any can be inferred from it, which prohibit 
the Government, after the rightful subjugation of its 
rebellious subjects by force of arms, from requiring 
of them indemnity for the injuries they have inflicted 
upon the nation, so far as such mdemnity is possible ; 
or from prescribing such conditions of restoration to 
their former political powers and privileges as may 
be necessary to prevent the future perversion of them 
to the like criminal purposes ; and such security for 
the personal safety, freedom, and immunities of all 
citizens of the United States within their borders as 
justice, humanity, and the plighted faith of the Gov- 
ernment, make necessary. 

If the Government has the constitutional right to 
subdue its rebellious subjects by war for the purpose 
of restoring the authority of the Constitution and 
the laws over them, it follows in the plainest logical 
necessity that it must have also the constitutional 
right to make that restoration complete and perma- 



POWERS OF COJs^GRESS. 83 

nent; for otherwise it can in no just sense be ac- 
counted a full restoration. And as the Constitution 
neither does nor could prescribe limits to the exer- 
cise of the military power necessary for the purposes 
of such subjugation and restoration, so neither does 
it, nor could it, prescribe limits to the power by which 
they shall be rendered permanently secure. Both 
must be left to the good faith and sound discretion of 
the Government, applied to the exigencies as they 
arise. And it is conceded on all hands that it alone 
must be the judge to decide w^hen such restoration 
shall be accounted as accomplished. 

It is believed that the case on this point might 
be very safely rested here, as showing that upon the 
principles affirmed or conceded by the author of the 
letter, carried out to their legitimate issues, the Gov- 
ernment has an unquestionable right to prescribe such 
terms as, in the exercise of good faith and a sound 
discretion, it shoidd see fit to impose as conditions of 
the restoration of the people of the rebel States to 
their former political powers and privileges. But the 
theoiy of their immediate right to such restoration 
without any conditions or limitations whatever, which 
he asserts and attempts to maintain, appears to be so 
utterly inconsistent with any reasonable appreciation 
of the facts as known to exist, and to lead to conse- 
quences so seemingly subversive of all future peace 
and security, that they cannot be suffered to pass 
unnoticed. He states this theory in these remarkable 
words : — 



84 RECONSTRUCTION. 

"After much reflection, and -with no such partiah"ty for execu- 
tive power as ^vould be likely to lead one astray, I have formed 
the opinion that the Souihern States are noiv as rigltffidly, and 
should he as effectively, in the Union as they were before the mad- 
ness of their people attempted to carry them out of it; and in this 
opinion I believe a majority of the people of the United States 
agree." 

It is presumed, that, by this time, the author must 
be convinced that a very great majority of the people 
of the Northern States entercain a totally contrary 
opinion. And if, from the votes cast in the late elec- 
tions, those of interested office-seekers and their 
friends, of sympathizers in the rebellion from the 
start to this hour, of hirelings paid for their ballots, 
of those actuated by an unrelenting hatred of the 
llepublican party as a controlling motive, and of 
the hordes of ignorant foreigners who constitute the 
strength of the Democratic party in the great cities, 
were to be stricken out of the count, he would, it 
is believed, find himself in a minority, in point of 
numbers, indeed most miserable. 

But how does this theory comport with the facts X 
It is undeniable, in view of all tlie evidence before the 
the Avorld, — in the report of the Committee upon 
Reconstruction ; in the daily reports from Southern 
newspapers ; in the public speeches and addresses 
of the leading men of the South, both occasional and 
official ; in the action of their legislatures and so- 
called courts of justice; in the reports of the 
military commanders stationed among them, aud of 



POWERS OF CONGRESS. 85 

the officers of the Freedmen's Bureau; in the 
multitudinous rehitions of murders and outrages upon 
the black man; and in accounts of the insecurity 
of life in many parts of the Southern States, to any 
Union man out of the scope of military protection, 
with which the daily papers and private letters are 
filled, — in the view of all this evidence, and with the 
ghastly massacres of Memphis and New Orleans 
yet fresh in remembrance, it is undeniable that a 
general and almost universal conviction prevails at 
this moment, among the inhabitants of the rebel 
States, that their cause was a just one ; that the 
undertaking, on the part of the Government of the 
United States, to subdue them was unrighteous and 
cruel, and that they are the victims of oppression by 
the mere fortunes of war ; that the debt incurred by 
them was in defence of their sacred rights, and ought 
to be conscientiously paid ; that the debt contracted 
by the United States was the fruit of an unjustifiable 
and wicked war upon them, and should be repudi- 
ated, or at least that no portion of it should be 
assessed upon them ; that slavery, which they were 
forced to abolish, was in truth a divine institution, the 
best possible for the black man as well as for the 
white ; that the security and happiness of both races 
require that the negro should be held in perpetual 
subordination, as the hewer of wood and drawer of 
water ; that the privilege of the ballot, of serving as 
a juror, or of holding any office of honor or emolu- 



86 RECONSTRUCTION. 

ment, or of owning or hiring land, or of education, 
are all alike inconsistent with the dignity and safety 
of the white man, or the real good of the black man ; 
and that, if any opportunity should hereafter present 
itself for them to re-assert their right of secession, 
and establish a Southern empire, it would be perfectly 
righteous for them to do so. 

Such are unquestionably the temper, the feelings, 
the sentiments, and opinions of the great majority of 
Southern men and women at this time, and of nearly 
all of their recognized leaders. If, then, the author- 
ity of the Constitution and the laws of the United 
States is, or appears to be, so far established among 
them, that its courts and magistrates of law and other 
officers are permitted to re-assume their functions, and 
no open or organized resistance of it is ventured 
upon, they nevertheless all stand upon the ashes 
of this smothered volcano, whose embers are still 
burning with intense heat beneath them, and where 
existing forms of law and government are notoriously 
inadequate for the security of the lives and liberty 
of the freedmen, who lie exposed to the merciless 
inflictions of State legislation, and the still more merci- 
less persecutions of vindictive social hatred, from 
which nothing in the existing Constitution and laws 
can protect them. 

This seeming restoration, then, of the authority 
of the Constitution and the laws, if, indeed, such 
seeming can be said to exist, is but an outward show ; 



POWERS OF COISGRESS. 87 

and, while the heart of the South remains unchanged, 
can be but a hollow truce, unless some fitting safe- 
guard for the future be erected. Nor can it be 
justly said that such precautions would indicate 
unjust and unworthy suspicions of the good faith of 
the inhabitants of the Southern States, who have 
professedly returned to their allegiance. The diffi- 
culty is not in supposing them less worthy of trust 
than other men, or than the people of the North 
might be in the like circumstances. It is in the 
nature of man, that he cannot long and patiently 
submit in silence and quiet under the sense of such 
accumulated wrong and injustice as the people of 
the South imagine to be thus heaped upon them. 
And, if the smothered fire should not find vent in 
another open outbreak, it inevitably must in the 
secret windings of political machinations and com- 
binations tending to the same end. Some security, 
therefore, seems indispensable for the preservation of 
any future peace or permaraent safety of the Union. 

But why, it is asked, is not the new oath of alle-^ 
giance sufficient, and all that can be reasonably 
demanded of honorable men or good citizens'? The 
answer is obvious. Nearly all the leading men of 
the South had taken the oath of allegiance to the 
United States, and broke it unhesitatingly to take 
part in the rebeUion, and substitute a new oath of 
allegiance to another and hostile government. And 
they did this, they say, conscientiously, under the 



88 RECONSTRUCTION. 

conviction that allegiance was primarily due to their 
respective States, and that the allegiance due to the 
United States was secondary only. And in this view 
they were and are sustained by the nearly unanimous 
voice of their people. And, they still earnestly main- 
tain that they were right in this construction of their 
duties, and spurn with indignation the imputation of 
any treason or falsehood against the Government of 
the United States. And, this being so, what security 
can there be that this new oath will not be taken or 
construed with the like mental reservation? or, if that 
might not be, why might they not hereafter, and with 
truth, assert that this oath was not voluntary, but one 
extorted under duress and the force of arms, and 
therefore not binding upon the conscience 1 

I ■' In view, therefore, of the facts, and of the general 

principles to be applied to them, it seems to follow, 
as of logical necessity, that (hoAvever the powers of 
the Government of the United States miglit be sup- 
posed to be otherwise limited by the Constitution, in 
the carrying-on of the war and in prescribing con- 
ditions of peace and restoration) whatever terms are 
demanded by the exigency, in order to make such 
peace and restoration entire and permanent, must be 
within the scope of those powers ; and that some 
such terms or conditions arc imperatively demanded 
in the present case. 

Upon what reason or principle, then, is this doctrine 
denied, and an attempt made to show that the Consti- 



POWERS OF CONGRESS. 89 

tution does interpose to limit those powers and to 
prevent the imposition of any such terms ] 

The main argument, if argument it may be called, 
seems to consist in the formula above cited ; namely, 
that the right of the Government to subdue the re- 
bellion, being a constitutional right, could be exer- 
cised only "within the limits of the powers conferred 
by the Constitution ; " that those powers, being con- 
fined to the restoration and re-establishment of the 
authority of the Constitution and the laws in the re- 
bellious States, were exhausted when such restoration 
and establishment were accomplished, and the peo- 
ple of those States therefore become entitled to im- 
mediate restoration of all their former political 
powers and privileges in the Union; and therefore 
that an attempt to impose upon them any terms or 
conditions of sucli restoration is an usurpation, hav- 
ing no other foundation than the assumed right of 
the conqueror to dictate terms of peace, and which 
right, it is alleged, pertains to conquest in a foreign 
war only, and not to one in a civil war. And no 
little dust has been throAvn into the eyes of the 
public, by efforts to make it appear that Congress, 
in undertaking to impose any terms or conditions 
of restoration, are usurping, and assuming to act 
upon, the rights and powers of conquerors in a 
foreign war. 

It must be apparent to every reader, that this style 
of reasoning is founded upon an entire begging of 

12 



90 RECONSTRUCTION. 

the whole question : first, in assuming that the rebels, 
upon such submission, became immediately and un- 
conditionally entitled to enjoyment of their former 
powers and privileges in the Union, — when the main 
question at issue is whether they do become so ; and, 
secondly, in assuming that the right of the conqueror 
in war to dictate terms of peace is confined ex- 
clusively to foreign war, and does not extend to civil 
war, — which is also one of the material questions to 
be decided. 

In reference to the first of these questions, it is be- 
lieved that no further argument can be needed to 
prove that the right of the Government to subdue the 
rebellion, and restore the authority of the Constitution 
and the laws in the rebellious States, involves, by an 
inevitable logical necessity, the right to impose upon 
the people of those States such terms and conditions 
as shall make such restoration secure and permanent, 
or to hold them under its military authority until it 
shall have become so. 



RIGHT OF GOVERNMENT. 91 



CHAPTER III. 

RIGHT OF GOVERNMENT AS CONQUEROR TO DICTATE 
TERMS OF PEACE. 

In discussing the right of the Government to dic- 
tate terms and conditions of peace as the victors in 
the struggle, we must put aside, as wholly irrelevant, 
all questions concerning the right of the Government 
of the United States to hold the inhabitants of terri- 
tories, acquired by conquest in a foreign war, perma- 
nently under military control, or under territorial or 
colonial administration only ; or of its obligation 
to admit them into the Union as States when fitted for 
such admission. Also, any question of its right or 
power, as the conqueror, to hold the inhabitants of 
the rebel States in permanent military or other con- 
trol as territories or colonies ; or to impose upon 
them any terms or conditions of restoration to their 
former political rights and powers, which it may see 
fit to impose in the exercise of its arbitrary will only, 
without due regard to such ultimate restoration. And 
with them may go the nonsensical clamor about mili- 
tary usurpation, military despotism, despotic will, and 
irresponsible poweiv heaped upon Congress for main- 



92 RECONSTRUCTION. 

taining its right, as the victor, to impose conditions 
of peace. 

It is conceded, that the nature of the Government 
of the United States, as created by the Constitution, 
does limit its powers, as conquerors of the rebel 
States, to tlie effectual subjugation of their inhabitants 
to its authority, for the purpose of the restoration of 
them to their former rights and privileges as States in 
the Union ; and would not allow it to hold them in 
permanent arbitrary subjection, as conquered territo- 
ries merely, any longer than may be needful for the 
accomplishment of such restoration. But it is main- 
tained that the Government, nevertheless, has fall 
right and power, as the conqueror in the war, to pre- 
scribe the terms and conditions of peace upon which 
such restoration shall be granted, unlimited and un- 
shackled by any provisions of the Constitution, or any 
other restraints than those of obedience to humanity, 
justice, sound national policy, and the preservation of 
the Union ; and that the Constitution does not ex- 
pressly, nor by implication, interpose to shield the 
inhabitants of those States from the imposition of 
such terms and conditions, or to entitle them to re- 
assume their participation of power in the national 
councils, free from all restraint upon its perversion 
for accomplishing hereafter the same purposes which 
they sought to gain in the field. Any other principle 
obviously deprives the Government, whose life is the 
life of the nation, of the power of self-preservation, 



RIGHT OF GOVERNMENT. 93 

and makes the Constitution, which created it, the ready 
means for its destruction. 

The truth is manifest, that the exigency of a civil 
war, by a combination of States against the General 
Government, was not anticipated by the framcrs of 
the Constitution, and is nowhere contemplated in its 
provisions; and consequently that the terms of it 
have nothing to do with the case in hand, further than 
this : that in establishing a frame of government upon 
the broadest principles of freedom and humanity, and 
for the especial purpose of establishing and perpetu- 
ating the Union, they impose upon that government 
corresponding obligations to treat rebelHous subjects 
with all the mercy and magnanimity which the nature 
of their crime and the safety of the republic will 
allow; and the further sacred duty of preserving 
the Union unimpaired, by restoring the rebel States 
to their former places in it, as soon as such restora- 
tion can be safely accomplished ; but leaving the 
time and mode of discharging these duties to the 
exercise of its judgment and discretion, to be faith- 
fully exercised for the good of the whole nation. The 
common sense of the people of the United States, 
of mankind, and of history will repudiate as absurd 
any hypothesis that the Constitution imposes any 
other limits to the authority of the national Govern- 
ment in such an exigency, or binds any such fetters 
about its limbs as render it incapable of self-defence, 
or of saving the nation for whose preservation it was 
created. 



94 RECONSTRUCTION. 

As the Constitution, in investing the Government 
with the power to enter upon foreign war, imphedly 
clothed it with all the rights incident to conquest, 
including that of dictating the terms of peace, and 
unlimited by any other restraints than those imposed 
by the nature of the Government and the objects of 
the war ; so, in investing it with the power to subdue 
rebellious subjects in a civil war, it gives the like 
right to impose the terms and conditions of peace, or, 
which is the same thing, of restoration to their 
former rights and privileges, unlimited by any other 
than the like restraints. The reason is the same in 
both cases. This right of the conqueror is not found- 
ed upon any arbitrary rule, nor is it any merely 
gratuitous prerogative granted to the strongest as 
the fruit of victory, but rests upon the absolute 
and unavoidable necessity of the case, there being 
no common arbiter or judge who can decide be- 
tween the parties upon the reasonableness or justice 
of the terms upon which peace should be made ; and 
which necessity is as absolute in a civil war as in a 
foreign war. 

In considering the applicability of the rule in this 
instance, it must be conceded that if there ever was 
a case, or one could be imagined, in which a civil 
war could or should vest in the victorious Government 
all the rights of the conqueror as in a foreign war, 
this is most emphatically that case ; for whether re- 
garded in reference to the acknowledged absence of 



RIGHT OF GOVERNMETSIT. 95 

any justifying cause for the rebellion, or to tlie extent 
of national territory held for four years in exclusive 
and hostile array against the national forces, or to the 
worse than barbaric ill faith and fiendish cruelty with 
which the war on their part was waged, or to the 
enormous sacrifices of precious life and countless 
treasure which it cost, the enormity of the crime 
against civilization and humanity has no parallel, and 
no punishment could exceed that due to the guilty 
authors of it. Justice and humanity, as well as na- 
tional pohcy, would alike dictate, that, at the close 
of the struggle, they should lie at the feet of their vic- 
tors. 

The entire identity of the rights and powers inci- 
dent to victory in civil war with those of victory in 
foreign war is broadly and clearly laid down in the 
elementary writers on public law of the highest 
authority. It is so necessary to have this material 
element in the argument immediately before the 
reader, that no other apology is necessary for repeat- 
ina: the citation from Vattel above made in another 
connection. He states the principle thus : — 



" A civil war breaks the bands of society and govei-nment, or at 
least suspends their force and effect. It produces in tlie nation two 
independent parties, who consider each other as enemies, and ac- 
hnowledge no common jitdge. These two parties, therefore, must 
necessarily be considered as constituting, at least for a time, two 
separate bodies, two distinct societies. Having no common superior 
to judge between them, they stand in precisely the same predica- 
ment as two nations who engage in a contest, and have recourse to 
arms." 



96 RECONSTRUCTION. 

Wheaton lays down the law thus : — 

" Tlic general iisnge of nations regards such a war (civil war) 
as entitling both the contending parties to all the riglits of war as 
against each other, and even as respects neutral nations." (Whea- 
ton's International Law, Dana's ed., § 29G.) 

Mr. Dana annexes a very elaborate note upon the 
subject of belligerent rights incident to civil war, 
both in regard to the parties to it and to foreign na- 
tions, but suggests no distinction between the riglits 
of victory in that and those of victory in a foreign 
war. And it is believed that no such distinction is 
anywhere intimated by any writer upon public law. 
If it had been, it could not have escaped this learned 
and thorough master of the subject. It seems impos- 
sible to believe, that, if the broad difference contended 
for were contemplated by them as having legal ex- 
istence, they should never have made allusion to it ; 
and equally incredible, that, if founded on any sound 
principle, it should not have occurred to their minds. 
So far, therefore, as their opinions may be inferred both 
from their language and their silence, it is believed 
that they may be considered as rejecting any such dis- 
tinction. 

And the reason of the case is manifestly against 
any. The fundamental principles of the right of the 
victor to prescribe the terms of peace in a foreign 
war, apply, not only with equal, but with greater 
force, in a civil war. That of the necessity of the 
case, namely, because there can be no common arbi- 



RIGHT OF GOVERNMENT. 97 

ter or judge between them, is of equal validity in 
both cases. And, in reference to qualifications of the 
arbiter, who but the victorious Government can de- 
cide upon the nature or degree of the crime involved 
in the treason, the punishment justly due, the 
amount of injuries for which indemnity may justly 
be demanded, the security necessary to guard against 
future like revolt, or for the protection of the 
lives, liberties, rights, and property of the loyal citi- 
zens of the Union in the territories of the rebel 
States, and the other questions necessarily involved 
in any adjustment of the terms of peace? 

It is absurd to pretend, that, upon the surrender of 
the rebel forces and the cessation of opposition to the 
authority of the Constitution and the laws, the Con- 
stitution becomes the arbiter ; for the whole question 
is of the right of the rebels to be restored to any 
privileges under it, or of the terms upon which such 
restoration shall be made ; and, until that shall have 
been completed, their constitutional rights are the 
subject in dispute, not the arbiter by which it can be 
decided. 

Again, the rule applies to the case of a civil war 
with much greater reason, from the consideration, 
that in such a war, where the legitimate Government 
has succeeded in subduing an unrighteous rebellion, 
the conquered are malefactors, guilty of the highdst 
crime known in civilized society, and the terms 
of whose pardon, therefore, upon all the principles 

13 



98 RECONSTRUCTION. 

and analogies of law, rest of right in the sense of just- 
ice and humanity of the Government whose authority 
they have spurned, and whose laws they have out- 
raged. 

What, then, are the reasons urged in denial of this 
right ? So far as they can be gathered from this let- 
ter, and the minority Heport, and other publications, 
they are thus related : — 

" When the war lias ceased, when the authority of the Constitu- 
tion and huvs of the United States have been restored and estab- 
lished, the United States are in possession, not under a new title as 
conquerors, but under their old title as the lawful Government of 
the country ; that title has been vindicated, not by the destruction 
of one or more States, but by their preservation, and this preserva- 
tion can only be entered into by the restoration of republican gov- 
ernments organized in harmony with the Constitution." 

" Conquest of a foreign country gives absolute unlimited sover- 
eign rights ; but no nation ever makes such a conquest of its own 
territory. If a hostile power, either from without or witliin, takes 
and holds possession and dominion over any portion of its territory, 
and the nation by force of arms expel or overthrow the enemy, and 
suppress hostilities, it acquires no new title, and merely regains the 
possession of that of which it w\as temporarily deprived. The na- 
tion acquires no new sovereignty, but merely maintains its previous 
rights." 

" When the United States take possession of a rebel district, they 
merely vindicate their pre-existing title. Under despotic govern- 
ments, confiscation may be unlimited ; but, under our Government, 
the right of sovereignty over any portion of a State is given and 
limited by the Constitution, and will be the same after the war as 
before." 

Now, in regard to these positions, it may be said in 
the first place, as above stated, that the war cannot be 



RIGHT OF GOVERNMENT. 99 

said to be ended, and the authority of the Constitution 
and the laws to be restored and estabhshed, so lonsr 
as military power is necessary to maintain it, as is 
now the case in large portions of the Southern States ; 
nor while such restoration is merely formal, tempo- 
rary, or insecure ; nor until it shall be made complete 
by suitable safeguards prescribed as the terms of 
peace : and in the second place, as before shown, 
that no one pretends that the nature of our Govern- 
ment would allow any retention of the territories of 
the rebel States as conquered foreign territory, sub- 
ject to despotic authority or military power only, if 
the inhabitants were willing to return to their alle- 
giance, under such terms as justice and humanity, and 
the national safety, demand. All that is maintained 
is, that, until such return and restoration, the Gov- 
ernment has full right, as the conqueror, to prescribe 
those terms, unlimited by any provisions contained 
in the Constitution ; and that the Constitution can 
have no application to any question concerning any 
rights of the rebels until the final restoration of its 
authority over them, upon such conditions as the 
Government shall have imposed, and they shall have 
accepted. 

It is undoubtedly true, that the Government, upon 
the subjugation of the armies of the rebels and re- 
sumption of possession of their territories, has ac- 
quired no new title, but is in such possession by vir- 
tue of the old one. And the result would be the same, 



100 RECONSTRUCTION. 

if. instead of the hostile possession taken by the rebels, 
it had been one taken by a foreign invading enemy. 
No one can question, that, in the latter case, if the 
invaders were so numerous, and had been so long in 
possession, as to render their expulsion or extermina- 
tion impossible, the Government could impose upon 
them such terms of permanent submission to its au- 
thority, and for protection of its loyal subjects there 
remaining, as it should think proper. And upon 
what principle can it be denied that the Government 
has the like right in reference to its rebellious citi- 
zens, who, far more criminal than any invaders could 
have been, have long held hostile possession of these 
territories, and from whom securities for future obe- 
dience to the Constitution and the laws, and for the 
protection of the loyal citizens residing among them 
from cruel persecution, are demanded alike by justice 
and humanity, and the national safety ? 

And if it be true, as is conceded, that the United 
States, upon the subjugation of the rebellion, " are in 
possession, not under a new title, as conquerors, but 
under their old title as the lawful Government of the 
country," it is none the less true that the Govern- 
ment re-assumes its sway over citizens whose con- 
dition has been radically changed by the rebellion, 
and with powers over them which it never before pos- 
sessed. Instead of loyal subjects, entitled to perfect 
immunity in the rights of property, liberty, and life 
which it could not impair, it finds them criminals, 



RIGHT OF GOVERNMENT. 101 

who have forfeited all such immunity, and who stand 
liable to be bereft of all those blessings under the 
laws which they have violated. Nor can such immu- 
nity be restored to them, but by its pardoning grace, 
and upon such terms of submission and security for 
future good behavior as its sense of justice and of 
political expediency may dictate. And it is not per- 
ceived why, upon the same principles, the Government 
has not the right to impose the like terms or condi- 
tions of restoration to their former political rights 
and privileges in the councils of the nation. 

The soundness of a theory may be best illustrated 
by familiar examples. That of the supposed success 
of England in subduing the colonies in the war of 
the Revolution has been already adverted to. And 
if, in such a case, she would have had the constitu- 
tional right (which is believed to be undeniable) of 
imposing such terms and conditions of restoration to 
the colonists, of their former political rights and 
privileges under their charters, as her Government 
might have considered to be demanded by justice and 
the future peace and security of the empire, what 
becomes of the distinction between a civil and a 
foreign war as to the power of the conqueror to 
dictate terms of peace 1 

But a still more satisfactory illustration may be 
found by applying the theory to the case in hand. 
That theory is, that, in subduing the rebellion, the 
Government of the United States can only act right- 



102 



RECONSTRUCTION. 



fully within the limits of the 2^owers conferred hy the 
Constitution ; and that these powers are confined to the 
restoration of the authority of the Constitution and laias 
of the United States in the rebel States ; and therefore 
that upon the laying-down of their arms, and the 
proffered and apparent submission of the rebels to 
such authority, they became instantly, ipsis factis, 
entitled to be re-instated in all their former political 
powers and privileges as States in the Union ; and 
that the Government has no right to interpose any 
such terms or conditions of such re-instatement as 
otherwise might be obviously reasonable and neces- 
sary for the future peace and safety of the nation, 
and which it might have imposed but for these limits 
upon its power affixed by the Constitution. 

Now, this theory manifestly involves the singular 
doctrine, that while the rebels might carry on the 
war, and, if successful, might dictate terms of peace 
without any limits or restraints, but those of the law 
of nations, and their own sense of justice and human- 
ity, — " Heaven save the mark ! " — the Government 
of the United States is bound, not only by these laws 
and its sense of right, but also hand and foot by 
the iron bands of the Constitution, crippling its 
strength in the combat, and laying it, even in vic- 
tory, at the feet of the conquered, for them to assume 
its powers, and enter at once upon the administration 
of its authority. 

How would the case have stood, if the rebels had 



RIGHT OF GOVERNMENT. 103 

realized their hopeful anticipations of laying Phila- 
delphia, Xew York, and Boston in ashes, or under 
contribution; and of dictating the terms of peace 
and of the future relations between the loyal States 
and the newly established slave empire, which was to 
control the destinies of America ? 

The war must have terminated, of course, as all 
wars must, by a treaty of peace between the two 
Governments. And it is worth while to contemplate 
for a moment w^hat would probably have been the 
principal terms dictated by the victorious slave- 
holders. 

Fii-st, There would have been the condition that 
nothing should be contained in the legislation or 
jurisprudence of the conquered States derogatory to 
the institution of slavery, as being of divine origin, 
and as instinct with justice and humanity towards the 
black man. 

Second, That all the black men, women, and 
children in the free States, who had ever been held 
in slavery in the slave States, and had escaped or 
gone into the free States under any circumstances, 
and the descendants of any residing therein, should 
be immediately delivered up to their former owners, 
or their legal representatives ; and that commission- 
ers, of known sympathy with the institution, should 
be appointed with full power to decide all questions 
arising under the treaty, and to deliver up such 
former slaves or their descendants, if any, to the 



104 RECONSTRUCTION. 

claimants ; and to call in the aid of the sheriffs of 
their counties, with their posse comitahts, to protect 
the owner in possession and transportation of such 
slaves out of the free States. 

Third, That the citizens of the Southern empire 
should have the right at all times to carry their slaves 
into tlie free States and the territories thereof, and use 
and treat them there in the same manner as they 
were accustomed to use and treat them in their own 
States, and to hire them out while there, free from 
all molestation by act or speech ; and that any such 
molestation should be an offence punishable by laws 
to be enacted for the purpose. 

Fourth, That a law should be enacted, in each 
of the free States, requiring the immediate arrest and 
imprisonment of any slave who should thereafter 
escape from a slave State mto a free State, by any 
person knowing of such escape, or upon complaint 
of his or her owner, or of any person assuming to 
act in his or her behalf; and that any citizen of a 
free State who should knowingly, or with reasonable 
cause of suspicion, aid or abet any such slave in so 
escaping, or harbor or conceal him or her, or give 
to him or her any succor or relief whatsoever, or 
who should fail to render aid when required in the 
recapture and restoration of such slave, should, on 
conviction, be punished by a fine, say, of not less 
than a thousand dollars, and of imprisonment for a 
term not less than five^years for the first offence, of 



RIGHT OF GOVERNMENT. 105 

ten years for the second, and with death for the 
thh'd; and that all trials for any such offences 
should be before commissioners to be appointed as 
aforesaid, and without the intervention of a jury, and 
without appeal. 

Fifth, That the United States should pay all the 
expenses incurred by the Confederate States in carry- 
ing on the war, and prescribed pensions to the fami- 
lies of all their soldiers who had died in consequence 
of it. 

Sixth, That no memorials or other tributes of 
honorable remembrance should be erected in any 
portion of the free States of those, their children, 
who had fallen in the war. 

Seventh, That it should be lawful for the owner 
of any slave escaping from either of the Confederate 
States into either of the United States, to pursue him 
in the territories thereof, and retake him by force of 
arms, if necessary, and transport him to the owner's 
place of residence, without being held guilty of any 
violation of the laws of neutrality, or of the laws of 
the State thus entered upon ; and that no fortresses 
or fortifications should be erected by the United 
States upon the lines dividing the two empires, nor 
within fifty miles thereof. 

No one can reasonably suppose that these requisi- 
tions would, in any degree, have transcended those 
which would have been imposed upon the people of 

14 



106 RECONSTRUCTION. 

the loyal States, if they had been as effectually sub- 
dued as are those of the rebel States. 

But now that victory has perched upon the stand- 
ard of the United States, and absolute power is in 
her grasp to vindicate the majesty of her outraged 
laws, to demand indemnity for the enormous treasure 
expended in maintaining her authority (none being 
possible for the infinitely greater loss of the lives of 
her children), and to require security for her peace 
and safety against future like revolt, or political 
machinations to accomplish the same ends, — all 
demanded by the simplest justice, and free from all 
taint of oppression, — we are coolly told that the 
Constitution prohibits the exercise of any such pow- 
ers ; that these reasonable demands are wholly uncon- 
stitutional ; that all which the Government can 
lawfully do is instantly to re-instate these still unsub- 
dued though conquered enemies in all their former 
political rights and privileges, and admit them into 
immediate participation in the administration of its 
authority. 

Upon this doctrine, the conclusion is obvious, that, 
in such a conflict, the traitors are at all times mas- 
ters of the situation, and that, if defeated, the con- 
quered, and not the conquerors, dictate the terms of 
peace. 

Another logical result from this theory is, that if, 
by any combination of circumstances, the inhabitants 
of States desirous to secede should obtain command 



RIGHT OF GOVERNMENT. lOT 

of a majority in both houses of Congress, either by 
the numbers of their own Senators and Representa- 
tives, or by combination with corrupt members mis- 
representing the loyal States, or otherwise ; and upon 
an attempt to exercise their political power in de- 
stroying the Union, and dismembering the Govern- 
ment, should be resisted by the people of the loyal 
States by force of arms, and be effectually subdued in 
the field, as they now have been, — they would never- 
theless have the perfect right, upon the laying-down 
of their arms, to resume their places in the national 
councils, there to resume their nefarious eff"orts, and 
again effect their purpose, or expose the nation to 
the horrors of civil war; and, if needful, might 
repeat the iniquitous game until the people of the 
loyal States, exhausted by successive conflicts, or 
weary of the strife and hopeless of repose, should be 
finally compelled to submit. 

Such are the clearly inevitable logical results of 
the theory which the President has adopted, which 
he is pleased to style his policy, and which he pro- 
claims to be the only one in accordance with the 
Constitution ; upon which he seeks to replace the in- 
habitants of the rebel States in immediate possession 
of their previous political power and influence in 
combination with then- former allies of the North- 
ern Democracy ; and by which, on his individual re- 
sponsibility and in declared opposition to the will of 
the representatives of the people, he is perilling 



108 RECONSTRUCTION. 

the present tranquillity and future safety of the 
country. The voice of an indignant people has 
already pronounced its condemnation, with an em- 
phasis which can leave no doubt either of its merits 
or of its fate. 



POWERS OF THE PRESIDENT. 109 



CHAPTER IV. 

ASSERTED POWERS OF THE PRESIDENT, AS THE EXECUTIVE 
HEAD OF THE GOVERNMENT AND AS COMMANDER-IN- 
CHIEF, TO DECIDE UPON THE RIGHTS OF THE REBEL 
STATES TO BIMEDIATE RESTOR/^TION. 

It remains only to consider the novel and remarka- 
ble construction of tlie Constitution, above men- 
tioned, upon which the President's policy is attempted 
to be sustained by the author of the letter. It is 
thus stated : — 

" The question whether de facto governments and hostile popula- 
tions have been completely subdued by arms, and the lawful 
authority of the United States restored and re-established, is a 
military and executive question. It does not require legislative 
action to ascertain the necessary facts ; and, from the nature of the 
case, legislative action cannot change or materially affect them. As 
commander-in-chief of the army and navy, and as the chief execu- 
tive officer whose constitutional duty it is to see that the laws are 
faithfully executed, it is the official duty of the President to know 
Avhether a rebellion has been suppressed, and whether the authority 
of the Constitution and laws of the United States has been com- 
pletely restored and firmly established. The mere organization of a 
republican government in harmony with the Union, by the people of 
one of the existing States of the United States, requires no enabling 
act of Congress, and I can find no authority in the Constitution for 
any interference by Congress to prohibit or regulate the organization 
of such a government by the people of an existing State of the 
Union : on the other hand, it is clearly necessary that the President 
should act so far at least as to remove out of the way military 



110 RECONSTRUCTION. 

restrictions on the power of the people to assemble and do those 
acts Avhich are necessary to re-organize their government. This I 
think he was bound to do as soon as he became satisfied that the 
right time had come." 

It would be difficult to exaggerate the alarming 
and dangerous nature of this doctrine, if it could be 
successfully maintained. It might well startle the 
nation to find that the power of final decision upon 
the relations subsisting between the inhabitants of 
the rebel States and the national Government, and 
between them and the other States in the Union, 
growing out of such a gigantic civil war as that 
through which we are passing, and the adjustment 
of which relations must vitally afi"ect the nature, the 
safety, and the strength of that Government for ages 
to come, if not for ever, rests wholly in one indi- 
vidual ; and that the representatives of the people 
are voiceless and powerless to control or affect it. 

No one can believe that poAver of such tremendous 
import would ever have been intentionally vested in 
the executive head of the Government alone, by the 
framers of the Constitution, if the exigency had been 
foreseen. No one will believe that it would have 
been conferred by the people even upon a Washing- 
ton or a Lincoln, or that either of them would 
voluntarily have assumed it. It is a power from 
which it would seem that any man, the most reckless 
of responsibility, would naturally shrink, if having 
only his country's good at heart; gladly turning for 



POWERS OF THE PRESIDENT. Ill 

advice and assistance to the representative agents of 
the people, instead of repelling them with vitupera- 
tion and insult for questioning his supremacy. 

The first obvious comment to be made upon this 
theory is, that it rests entirely upon the assumption, 
or the hypothesis attempted to be maintained in the 
former part of the letter, that the people of the 
rebel States, upon outward submission to the author- 
ity of the Constitution and the laws of the United 
States, became instantly entitled to the restoration of 
then' former political powers and privileges in the 
Union ; and that the Government Avas prohibited or 
disabled by the Constitution from exacting any indem- 
nity, or requiring any security for their future 
continued obedience, or any guarantees for the peace 
and safety of the nation, however reasonable or just 
such demands might otherwise be considered. It 
merely transfers the right of decision of the question 
of such submission from the General Government 
to the Executive Department alone. If, therefore, 
that hypothesis is unsound, — as it is believed most 
clearly to be, as above shown, — this new theory of 
construction of course falls to the ground with it. 
For the most extreme defender of the President's 
policy would not venture to affirm, that, if any terms, 
conditions, or guarantees could be lawfully demanded, 
he would have any right or power to determine their 
nature or extent. 

Before proceeding to consider the various reasons 



112 RECONSTRUCTION. 

which are believed sufficient to prove this theory to 
be wholly untenable, it is necessary to have a clear 
and distinct understanding of the two elements or 
principles upon which alone it is made to rest ; 
namely, the executive power and the military power 
of the President. These two powers, although often, 
as in this case, confounded together, as jointly con- 
ferring authority which neither singly could give, are 
totally distinct and independent, and are utterly unsus- 
ceptible of any fusion or commingling, so as to pro- 
duce a result which neither could alone effect. And, 
if the authority claimed for the President cannot be 
deduced from either taken singly, it cannot be from 
the two combined. Two ciphers cannot make a unit 
nor can any multiplication of them. 

Now, nothing in political science or language, and 
nothing indeed in common conversation, is better 
defined or more universally recognized than the 
meaning of the term "executive" as applied to 
government. Every one knows that it is descriptive 
of the head of the civil Government, who executes the 
Iciws, as distinguished from the legislature which 
enacts them, and the judiciary which applies them ; 
and that it designates an exclusively civil power for 
the execution of civil laws. It is equally clear and 
universally known, that military officers fo7^ni no part 
of the government, hut are its instruments only for 
especial purposes, and are never termed " the Execu- 
tive " nor " executive officers ; " and that military 



POWERS OF THE TRESIDENT. 113 

authority is no constituent part of the Government, 
but merely an agency by which it discharges certain 
of its duties or fiincLions. Tiio term ''• executive " is 
a correhitive term, always used in correlation to 
"judicial" and "legislative," and never as having any 
reference to military authority. All dictionaries and 
encyclopa}dias, as well as common usage, are perfectly 
co-incident on this point. 

It is true, that the Constitution (Art. II., Sec. 1), 
after providing that " the executive power sliall be 
vested in the President of the United States of Amer- 
ica," and prescribing the manner of his election, 
qualifications, &c., provides in another section (Sec. 
2) that " the President shall be commander-in-chief 
of the army and navy of the United States, and of 
the militia of the several States when called into 
the actual service of the United States." But this 
neither creates nor implies any expansion of his 
" executive power," but is merely the annexation 
to his civil office of another entirely distinct and dif- 
ferent one. There was no necessity, in the nature of 
things, for investing him with this miHtary authority 
as part of his powers as the head of the civil Govern- 
ment. And if the Constitution had provided that the 
commander-in-chief should be any other person, and 
appointed in any other manner, it would have dero- 
gated nothing from the President's executive suprem- 
acy ; nor can such addition of military to executive 
authority render acts done under it executive acts, 

15 



114 RECONSTRUCTION. 

any more than would the investment of the Chief 
Justice with the command of the army and navy ren- 
der his miUtary acts judicial ones, or vice versa. In 
his military capacity, therefore, the President is the 
mere servant or agent of the civil or political Govern- 
ment, and bound by its action as entirely as would be 
General Grant, or any other person, if he had been 
appointed such commander-in-chief. He has no right, 
as such commander, to declare war or make peace, 
nor decide any question affecting the political rela- 
tions between the States and the General Government. 
If the Congress declare war, whether civil or foreign, 
he is, as commander-in-chief, bound by its behests to 
use the military and naval forces of the nation for 
the subduing of the enemy, and has no further au- 
thority than to command them for that purpose. And 
as he has no power, as such commander, to declare war, 
so neither, as such, has he power to declare the 
war ended, however entire may be the subjugation of 
the enemy in his opinion, if the civil Government 
shall determine otherwise and direct its further pros- 
ecution. Still less has he any power, as such com- 
mander, to dictate or agree upon terms of peace, or to 
exonerate the conquered from submission to any such 
terms as the civil Government may see fit to impose. 
Tliis principle was signally asserted and acted upon 
in the surrender by General Johnston of his forces to 
General Sherman, and no one ever questioned the 
soundness of that decision. And, if possible, it is still 



POWERS OF THE PRESIDENT. 115 

more clear and certain that he has no power, as such 
commander, to decide upon or adjust any political 
relations created by the rebellion between the rebels 
and the General Government, or to define or determine 
what may be the legal and political consequences of 
their treason. 

Nor is the power of the President, as the executive 
head of the nation, less strictly a limited power. 
With regard to foreign relations, he can make treaties, 
appoint ambassadors or other ministers and consuls, 
only by and with the advice and consent of the Sen- 
ate. His only individual authority, indeed, in regard 
to such relations, seems to be the unavoidable one of 
receiving ambassadors and other public ministers. 
His powers are, in truth, far less than those with which 
the executive departments under other forms of gov- 
ernment are usually invested. They ordinarily have 
those of declaring war and making peace ; whereas, 
by the Constitution, Congress alone is authorized to 
declare war, and a treaty of peace can only be con- 
cluded by the President with the advice and consent 
of the Senate. As the executive head of the nation, 
he, of course, primarily represents the Government 
in its relations to the Governments of foreign nations, 
and in all negotiations with them, and may thus 
exercise a vast influence upon its prosperity and 
destiny. But he has no power of decision upon the 
great questions of international obligation, and peace 
and war, upon which they may chiefly depend. 



116 RECONSTRUCTION. 

So, in the administration of the internal affairs of 
the country, his powers are confined to the appoint- 
ment of certain judicial and other officers by and 
■with the consent of the Senate, and to taking " care 
that the laws be faithfully executed." He can neither 
make laws nor decide finally upon any question 
arising under those duly enacted. In political ques- 
tions involving the legal relations of citizens or of 
the States to the Government, he is subject to the civil 
Government, which alone has power to decide them. 
And in judicial questions he is subject to the judi- 
ciary. 

No principle of public law is more undeniable or 
more universally recognized, than that the decision of 
all the possible legal relations of the citizen to the 
Government, individually or politically, are primarily 
within the sole and exclusive jurisdiction and rule of 
the political or legislative department of it ; and are 
never, under any circumstances, within the scope of 
the executive or of the military power, excepting 
when invoked for enforcement of the laws concerning 
them. And nothing can be clearer than that any ques- 
tions concerning the relations created by the Consti- 
tution between the people of the several States, or the 
States in their corporate capacities, and the Govern- 
ment of the United States ; or between the individual 
States and the other States in the Union, as those 
relations existed before the rebellion ; and concerning 
any changes or effects upon such relations, caused by 



POWERS OF THE PRESIDENT. 117 

the rebellion ; and concerning the right ant! power 
of the Government to exact indemnity of the rebel 
States, and to impose terms or conditions of resto- 
ration to their former political powers and privileges, 
— are purely questions of constitutional law, of which 
the political or legislative department of the Govern- 
ment has primarily exclusive jurisdiction. And no 
more flagrantly unconstitutional usurpation of au- 
thority can be conceived of, than for the President, as 
the executive head of the Government, or as the 
commander-in-chief of the army and navy, to assume 
the right of deciding upon them as pertaining to him 
m either of those capacities. Cases doubtless may 
arise, in which it may be impossible seasonably to 
determine to which branch of the Government a ques- 
tion demanding immediate decision may belong ; 
and, in such case, an executive officer may be justi- 
fiable in deciding it upon his own responsibility. But 
where no reasonable doubt can exist, that it is one, 
the decision of which pertains exclusively to the po- 
litical department of the Government, he can have no 
justification in acting upon it in opposition to the 
decision of that department, however clear may be 
his conviction that such decision is erroneous and 
unwarranted by a true construction of the Consti- 
tution. The responsibility rests wholly upon that 
department, and in no degree upon him. IJe might 
with equal propriety exert his executive or military 
power to reverse a judgment of the Supreme Court, 



118 RECONSTRUCTION. 

and substitute his sense of justice in place of it, as 
thus to infringe upon and oppose the jurisdiction of 
the General Government. 

Again, during and upon the termination of the re- 
bellion, the people of the rebel States, as has been 
shown, and as is conceded in this letter, were utterly 
disorganized, and without governments which could 
entitle them to political rights as States in the Union; 
and could only be re-organized as such States by the 
consent of the Government of the United States, on its 
determination that the proper time for such re-organ- 
ization had come, and of which the Government is 
confessedly the sole judge. 

But it is obvious, that, in deciding upon the right of 
such restoration and the reception of the representa- 
tives of such State into the councils of the nation, 
the essential preliminary question must be decided, 
whether the Government thus organized is a republi- 
can form of government, and otherwise in harmony 
with the requisitions of the Constitution. And it is 
equally clear, that any such question is not only, in its 
nature, purely political, but that the decision of it is, 
by the express terms of the Constitution, delegated 
exclusively to Congress. Upon what principle, then, 
can it be contended that the President alone, as the 
executive head of the Government or as commander- 
in-chief of its forces, is authorized definitely to settle 
that question, and to recognize the rebel States as en- 
titled to all their political rights and privileges, as, 



POWERS OF THE PRESIDEI^T. 119 

upon this theory in question, he is entitled to do? 
Can a more palpable substitution of military or exec- 
utive authority, in place of the political authority 
established by the Constitution, be conceived of? It 
is said, indeed, that — 

" The mere organization of a republican Government in liarmony 
with the Union of a peojjle of one of the existing States of tlie United 
States requires no enabling act, and that no authority is found in 
the Constitution for any interference by Congress to prohibit or 
regulate the organization of such a government by the people of an 
existing State iu the Union." 

But all this, if true, would not meet the difficulty. 
Although no previous enabling act may be required 
to authorize such organization, the subsequent duty 
and necessity of passing judgment upon the question 
whether it be a republican form of government, and 
otherwise in harmony with the Constitution, will 
nevertheless inevitably arise ; and that duty must, as 
above shown, devolve upon Congress alone. But the 
proposition is believed to be fallacious, in assuming 
that the people of a State, which has thus destroyed 
its political relations to the Union, can, before its 
re-admission to the Union by the authority of the 
Government, be accounted with any propriety as " one 
of the existing States of the United States," or " an 
existing State in the Union," under the Constitution. 

Another and fatal objection, as is believed, to this 
theory, is found in the consideration that it is based 
entirely upon the assumption that the recent civil war 



120 RECONSTRUCTION. 

is to be ncconntcd merely as an insmTection or rebel- 
lion, Avliich the executive head of the Government was 
competent to deal with in determining its nature and 
extent and its termination. Now, to confound a civil 
war of the gigantic proportions of that from Avhich the 
United States is emerging, in which the people of 
eleven States inhabiting and holding in hostile array 
about one-half of the territory of the United States, 
organized themselves into a distinct and separate 
Government, claiming to be an independent sover- 
eignty, and endeavored by a war of four years in 
duration, by land and by sea, to establish themselves 
as an independent nationality, — and to which de facto 
government belligerent rights were accorded by foreign 
nations and the Government of the United States, and 
were recognized by all its courts of justice and in its 
foreign diplomacy, — to confound such a war with a 
mere insurrection for a redress of grievances, or other 
causes, against a government whose general authority 
■was acknowledged, and whose nationality it was not 
its purpose to destroy, and which involved the neces- 
sity of nothhig more than the exercise of ordinary 
executive authority to subdue, — seems, to say the least, 
strangely unreasonable, and to furnish no foundation 
for any sound conclusions. 

The war was in fact, in every sense, a territorial 
war between two powerful governments, contending, 
one for national life and the other for the establish- 
ment of an empire ; calling forth all the resources of 



POWERS OF THE PRESIDENT. 121 

the national Government which the most exigent 
foreign war could put in requisition ; involving it in 
all the external poHtical relations with other nations 
which any war could create ; and shaking to their 
deepest foundations all the internal political relations 
of the people, and of the loyal and of the rebel States 
to the Government and the Union. A war in which 
the executive head of the Government, in the mere 
exercise of executive authority, would have been ut- 
terly powerless and helpless. A war not contemplated 
nor provided for by the Constitution, perilling the life 
of the nation, and throwing it back, in self-defence, 
upon the original principles of self-preservation. 

It was a war formally declared by the Confederate 
Government with all the solemnities of a declaration by 
a foreign nation, and was finally recognized by an act 
of Congress, in a statute held by the Supreme Court 
to be equivalent to a formal declaration of war by 
that of the United States ; and until which act, a 
respectable minority of the judges of the Supreme 
Court held that the President was not justifiable 
in the exercise of belhgerent rights affecting foreign 
nations. It had therefore every possible element of 
a foreign war, recognized by the political and judi- 
ciary departments of the Government, all whose 
powers were invoked in its support. 

To maintain that the executive head of the Govern- 
ment, by virtue of his office, has sole authority to de- 
termine upon the termination of such a war, and 

16 



122 RECONSTRUCTION. 

finally to decide upon its consequences upon the 
political relations of the parties to it, and the terms of 
peace, all which is necessarily involved in this theory, 
— and equally so whether he undertakes to dictate 
terms of peace, or to decide that none can be constitu- 
tionally demanded — seems to vest in the President a 
stretch of executive authority utterly abhorrent from 
any rational construction of the Constitution, or any 
conceivable theory of representative government. 

A state of war can only be terminated by a treaty of 
peace, express or implied. Usually between foreign 
nations, formal written stipulations are executed, and 
determine the time and conditions of its cessation. 
Where unconditional submission has been exacted, 
the rights of war continue on the part of the victor, 
until he has pronounced upon the future political con- 
dition of the conquered ; and that, if unresisted, consti- 
tutes the final treaty of peace. So here the war, 
declared by Congress, — which alone has the power to 
declare war, — can only cease when the terms of peace 
shall have been finally resolved upon ; and, until then, 
the rebels are under the military authority of the Gov- 
ernment, excepting in so far as it may see fit to relieve 
them from the immediate exercise of such authority, 
during its pleasure. But peace will not have terminated 
the war, until it shall have been decided on what terms 
the rebel States shall be restored to the Union, or that 
no terms can or shall be exacted. And that decision 
cannot rest with the Executive. In the case of a 



POWERS OF THE PRESIDENT. 123 

foreign war, it would be the duty of the Senate, acting 
in concert with the Executive, to determine on what 
terms the war should cease, or, in other words, when 
and how peace should be made. But in a civil war 
like this, where the fundamental relations of the people 
of the rebel States to the Constitution and the laws are 
involved, it is plain that the only departments which 
have cognizance of them, or can decide them, are the 
political or judiciary departments. The idea that the 
commander-in-chief of the forces of a Government, 
acting merely as such, can decide the question when a 
war declared by the authority of Congress has ended, 
and its purposes have been accomplished, is too absurd 
to require refutation. He is the mere servant or 
instrument of the Government in carrying on the war ; 
and must prosecute it, and continue the exercise of 
military authority against and over the enemy, vvhatever 
may be his individual opinion, until the Goverment 
decide the war to be ended by agreeing upon terms of 
peace. Nor, upon examination, is the idea that the 
Executive Department of the Government can decide 
such a question in the case of a war like this any more 
tenable, it having been shown that such decision 
necessarily involves the determination of many other 
questions purely political and constitutional, of which 
the Executive Department has no jurisdiction. 

In conclusion, whatever questions might be raised 
concerning the powers of Congress, or of the Exec- 
utive in ordmary cases of insurrection, it is believed 



124 RECONSTRUCTION. 

that in the case of a war declared by Congress, which 
alone has the power to declare war, and which power 
is not limited by the Constitution to a foreign, but 
applies, with equal reason, to a civil Avar of a magni- 
tude to require its interposition, — and in view of the 
unusual restraints imposed by the Constitution of the 
United States upon the Executive in relation to all 
matters of peace and war, — it is believed that no rea- 
sonable doubt can exist, that the President has no 
authority whatever to decide upon the terms or condi- 
tions of peace, or upon those of the restoration of the 
belligerents subdued by force of arms to their former 
political rights and privileges in the Union. 

Many other arguments might be adduced in support 
of the authority claimed by Congress, and there are 
doubtless others in defence of the President's policy 
which have not been particularly noticed in the pre- 
ceding remarks. 

It is believed, however, that the main points on 
both sides have been considered as fully as the nature 
of a publication of this sort will permit, and that they 
embrace in substance the merits of the question before 
the country. The author is conscious that there is a 
limit to the patience of readers, and beyond which he 
has great apprehension that he has already trans- 
gressed. 

He cannot, however, leave the subject without 
adverting to a possible misapprehension of his views 
upon the importance and sacredness of the rights of 



POWERS OF THE PRESIDENT. 125 

the States under the Constitution, which might arise 
from the nature of the discussion which lias been 
attempted. It will be observed, that his only object 
has been to vindicate the sovereignty of the General 
Government against the assaults made upon it by 
advocates of the rights of inhabitants of States who 
had renounced allegiance to it, and had engaged in 
civil war for its overthrow ; and consequently, that 
the discussion has been almost exclusively con- 
fined to consideration of the relations of the States 
to the General Government in that aspect only, and 
of the subordination and limitations of State sov- 
ereignty rather than of its attributes. But no one 
can be more profoundly impressed, than he believes 
himself to be, with the essential importance and in- 
violability of the rights intended to be secured to the 
several States under the Constitution. He accounts 
their individual sovereignty and independence over the 
domestic relations and municipal law, and in the 
internal governments of their respective inhabitants, 
as the very foundation stones of the national Govern- 
ment. The preservation of this sovereignty and 
independence, to the fullest extent warranted by the 
Constitution, he considers to be chief among the fun 
damental principles of American statesmanship ; as the 
only means possible of maintaining a free and ener- 
getic government over territories of extent so vast as 
those already comprised within our national bounda- 
ries ; as the safest barrier against attempt at Executive 



126 RECONSTRUCTION. 

usurpation ; as the main bulwark against the natural 
tendency of the General Government, as of all oth- 
ers, to consolidation and centralization of its author- 
ity ; and which, not thus controlled, attaining at first to 
the exercise of arbitrary power by the many, would, 
as all history prophesies, eventually terminate in 
practical despotism ; and, above all, as the sufficient 
and only instrumentality for educating and disciplining 
successive generations in the knowledge and practice 
of political rights and duties, by which alone they 
can be made capable of self-government. 

And no one will hail with profounder gladness a 
just perception on the part of the inhabitants of the 
rebel States of their true relations to the Govern- 
ment, and their return to their constitutional places 
in the Union which, unhappily for us all, they have 
made vacant. 















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